SB 337
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Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 337 (Kehoe) – As Amended: June 16, 2011
As Proposed to Be Amended
SENATE VOTE: 23-15
SUBJECT: TENANCY: POLITICAL SIGNS
KEY ISSUE: SHOULD TENANTS HAVE THE SAME FIRST AMENDMENT RIGHT AS
ANYONE ELSE TO DISPLAY POLITICAL SIGNS AT THEIR PLACES OF RESIDENCE?
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
SYNOPSIS
This bill seeks to give tenants a basic and traditional right that all other citizens enjoy: the right
to post reasonable political signs at their residences as a means of reasonably expressing to the
rest of the community their views and positions on important political matters. The United States
Supreme Court has held that posting political signs on one's residence is a protected and timehonored form of political expression. To be sure, the First Amendment of the United States
Constitution protects this form of expression from infringement by government actors, but not
necessarily from the actions of private landlords. However, the free speech provision of the
California Constitution has been interpreted by the California Supreme Court to be broader in
scope than the First Amendment, most notably in that it restrains both government and private
suppression of protected speech. This bill is similar, but not identical, to a bill that the author
carried in the 2005-2006 legislative session. That bill passed through both houses of the
Legislature but was vetoed by the Governor, apparently because it both limited a tenant's right
of expression (by limiting the size of sign and imposing time constraints, for example) and at the
same time because it did not give landlords clear authority to control the appearance of the
property. Although the current bill also limits the size of the signs and how long they may be
posted, it appears to give much more opportunity for a landlord to prohibit signs that violate the
law and strictly limits the content of the signs to elections and votes of public bodies. The bill
passed off the Senate Floor on 23-15 vote. It is opposed by apartment associations, rental
property owner associations, and the San Francisco Association of Realtors who contend, quite
literally it seems, that the bill could lead to mass demonstrations and eruptions of violence.
SUMMARY: Provides that a landlord shall not prohibit a tenant from posting or displaying
political signs, as defined, except under certain circumstances. Specifically, this bill:
1) Provides that a landlord shall not prohibit posting or displaying political signs on or within
any portion of the tenant's dwelling unit that relate to any of the following:
a) An election or legislative vote, including an election of a candidate to public office.
b) The initiative, referendum, or recall process.
c) Issues that are before a public commission, public board, or elected local body for a vote.
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2) Permits a tenant to post or display political signs in the window or on the door of the
premises leased by the tenant in a multifamily dwelling, or from the yard, window, door,
balcony, our outside wall of the premises leased by a tenant of a single-family dwelling.
3) Permits a landlord to prohibit a tenant from posting or displaying political signs in the
following circumstances:
a) The political sign is more than six square feet in size.
b) The posting or displaying would violate a local, state, or federal law.
c) The posting or displaying would violate a lawful provision in the governing documents of
a common interest development, as specified.
4) Requires a tenant to post and remove political signs in compliance with the time limits set by
the ordinance for the jurisdiction where the premises are located. Specifies that if no local
ordinance exists or if the local ordinance does not include a time limit, a landlord may
establish a reasonable time period for the posting and removal of political signs so long as it
is at least 90 days prior to the date of the election or vote to which the vote relates and at least
15 days following the date of the election or vote.
EXISTING LAW:
1) Recognizes that residential signs are "a venerable means of communication" that "have long
been an important and distinct medium of expression." (City of Ladue v. Gilleo (1994) 512
U.S. 43, 54-59.)
2) Guarantees that "every person may freely speak, write and publish his or her sentiments on
all subjects, being responsible for the abuse of this right. A law may not restrain or abridge
liberty of speech or press." (Cal. Constitution, Art. I, 2, subd. (a); see also Wilson v. Superior
Court (1975) 13 Cal.3d 652, 658) (holding that the California free speech clause is "more
definitive and inclusive" that the First Amendment); and Robins v. Pruneyard Shopping
Center (1979) 23 Cal.3d 899 (holding that the California free speech clause is not limited
solely to government actors, as is the First Amendment.)
3) Provides that the governing document of a Community Interest Development (CID) may not
prohibit homeowners from posting noncommercial signs, posters, flags, or banners on or in
their individual properties, except as required for the protection of public health or safety or
if the posting would violate a local, state, or federal law. Permits a CID governing document
to prohibit signs or posters larger than nine square feet, and flags or banners larger than 15
square feet. Further permits CID governing documents to prohibit signs made out of lights,
roofing, siding, paving materials, flora, or balloons, or any other similar building,
landscaping, or decorative component, or signs that include the painting of architectural
surfaces. (Civil Code section 1353.6.)
4) Provides that a resident in a mobile home park may not be prohibited from displaying a
political campaign sign in the window or on the side of a manufactured home or mobile
home, or within the site on which the home is located or installed, so long as such signs do
not exceed six square feet in size or are displayed for longer than the period of time between
90 days prior to an election and 15 days following the election, or in violation of any time
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restriction established by local ordinance. (Civil Code section 799.10; see also Attorney
General Opinion #90-938.)
5) Prohibits a landlord from retaliating against a tenant because of the tenant's exercise of "any
right under law." (Civil Code section 1942.5(c).)
COMMENTS: According to the author, this bill will continue California's strong public policy
preference for protecting freedom of expression by granting to the tenants the same rights that
other Californians enjoy. Specifically, this bill would generally prevent a landlord from
prohibiting tenants from posting political signs, so long as those signs do not exceed six square
feet in size and do not otherwise violate local, state, or federal law, or the governing documents
of a community interest development.
Existing Law Provides Similar Protections in Other Contexts: The Legislature has already
demonstrated this policy preference recently in two other contexts. For example, in 2003 SB 116
(Ch. 249, Stats. of 2003) provided that a resident in a mobile home park could not be prohibited
from displaying a political campaign sign in the window or on the side of a mobile home, or
within the site on which the home is located or installed, so long as such signs do not exceed six
square feet in size or are displayed for longer than the period of time between 90 days prior to an
election and 15 days following the election. That same year AB 1525 (Ch. 774, Stats. of 2003)
prohibited the governing documents of a Community Interest Development (CID) from
preventing homeowners from posting noncommercial signs, posters, flags, or banners on or in
their individual properties, except as required for the protection of public health or safety or if
the posting would violate a local, state, or federal law. That legislation did, however, permit CID
governing documents to restrict the size of signs or posters to no more than nine square feet, and
flags or banners to no more than 15 square feet. This bill is fully consistent with those prior
measures. Opponents have informed the Committee that the comparison with the prior statutes
is not apt because the tenant does not "own" the property. However, this argument fails to
appreciate basic property law concepts and the fact that a tenancy is a property right. As every
first-year law student learns, a property right is not a single, unitary right, but is rather a "bundle
of sticks" containing several distinct and potentially severable rights: most notably the right to
use, the right to enjoy, the right to exclude, and the right to convey. A tenancy, historically, has
generally conferred on the tenant all but the last of these rights. It is not at all clear how one can
argue that holding all but one of these "sticks" should result in the loss of the same rights that
every other property-holding Californian enjoys.
Background: In City of Ladue v. Gilleo, (1994) 512 U.S. 43, the United States Supreme Court
recognized that a person's ability to post a sign on his or her own residence is a valuable right
protected by the First Amendment of the U.S. Constitution. In that case the City of Ladue had
enacted an ordinance generally prohibiting residents from posting signs in front of their houses,
with a few specified exceptions. The Court found the ordinance to be unconstitutional, stating:
Signs that react to a local happening 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 resident's support for particular candidates, parties, or
causes. (City of Ladue, 512 U.S. at 54-55.) …Residential signs are an unusually cheap
and convenient form of communication. Especially for persons of modest means or
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limited mobility, a yard or window sign may have no practical substitute. (City of Ladue,
512 U.S. at 55-57. Emphasis added.)
Tenant Posting Of Campaign Signs Is Arguably Constitutionally Protected: While City of Ladue
held that posting campaign signs on one's property is a constitutionally protected right, the First
Amendment only applies to government actors and therefore would not necessarily prohibit a
private landlord from prohibiting the use of such signs. However, the free speech provisions of
the California Constitution appear to provide such protection. While no court has directly
considered whether a prohibition on tenants posting political signs is unconstitutional, several
California Supreme Court decisions lean strongly in that direction, for it has repeatedly held that
the free speech provisions of the California Constitution are much broader and more inclusive
that the First Amendment and, most important, the California constitution protects free speech
from both state and private actors. (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658; Robins
v. Pruneyard Shopping Center (1979) 23 Cal.3d 899.)
Indeed, California's recently-retired Chief Justice, Ronald George, strongly suggested in a
concurring opinion that prohibiting a tenant from posting political signs might well violate the
free speech provisions of the California Constitution. In Golden Gateway Center v. Golden
Gateway Tenants Association (2001) 26 Cal.4th 1013, the court upheld the right of a landlord to
prohibit a tenants association from distributing pamphlets under the doors of other tenants
without their express consent. In his concurring opinion, Justice George agreed that the
California Constitution did not protect unsolicited distribution of pamphlets by a tenants
association in the interior hallways of a private apartment building, but he wrote separately to
stress that the state free speech clause might still be enforceable against a private person who
attempts to "censor or undermine what might be viewed as another individual's 'core' free speech
rights." (Golden Gateway Center, supra, at 1042.) Chief Justice George then gave the following
example, which is quite fitting in light of this bill:
Consider a private landlord who, under penalty of eviction, precludes his or her tenants
from displaying in the windows of their apartments the campaign poster of a particular
political candidate supported by the tenant - or requires the tenants to display in the
windows of their homes a poster of the candidate supported by the landlord . . . If we
were to hold . . . that [state constitutional] free speech claims require state action . . . we
would effectively remove any state constitutional obstacle to any such action by a
landlord . . . (Id. at 1042-1043, emphasis added.)
Although the Chief Justice did not definitively state that a tenant had such a right – since that
was not the question before the court – he cited numerous precedents for the proposition that the
California Constitution protects freedom of expression from infringements by private as well as
state actors, and he made it very clear that he was very troubled by any construction of the state
constitutional provisions that would permit a landlord to deny a tenant such a "core" free speech
right as posting political signs on one's residence. Moreover, even if the state constitution does
not prohibit landlords from banning such activity, there is nothing to prevent the Legislature
from providing more protection than the minimum level required by the state constitution.
This Bill Permits Reasonable Limitations: This bill would not, contrary to the claims of
opponents, permit tenants to clutter properties with overly large or offensive signs. The bill
expressly permits a landlord to prohibit the posting of any signs that are over six square feet in
size (i.e. a fairly standard 2x3 lawn sign). The bill would also permit a landlord to prohibit signs
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that would violate federal, state, or local laws, so the signs could not be obscene or distract
traffic, for example. If the tenant were renting a unit in a community interest development, the
signs would need to comply with any lawful rules and regulations of the association. Finally, the
tenant would be subject to any local ordinances that impose limitations on when signs may be
posted (e.g. from 90 days prior to 15 days after an election), and if no local ordinance restricted
the time, the landlord could impose reasonable time limits.
Finally, it must be stressed that this bill only applies to "political signs," which are defined to
mean signs relating to an election for public office, a ballot measure, or a vote by a public body.
These restrictions would appear to rebut claims by opponents that this bill would permit tenants
to post offensive "hate" signs. For example, a joint letter by several apartment and realtor
associations submitted a newspaper article about an incident on the other side of the country in
Amherst, New York (near Buffalo) about a homeowner (not a tenant, curiously enough) who
posted a sign that read "Bomb Making Next Driveway," apparently in reference to a Mosque that
had been built next door over the homeowner's opposition. Opponents contend that this incident
"proves our case" that tenants will use this bill to "taunt others" with "signs of hate." That
anyone could argue that this bill, restricted as it is to political signs relating to upcoming votes or
elections, would authorize such signs strains credulity. Opponents express shock that the local
police told the Mosque that the sign was not illegal; but given that this incident involved a
homeowner, it's difficult to see how this incident has any bearing on this bill at all, let alone how
it "proves" anyone's "case." Perhaps posting a sign like the one posted in Amherst should be
unlawful or at least actionable, but whatever New York law may be on this matter, one hopes
that it applies equally to homeowner and tenant alike.
ARGUMENTS IN SUPPORT: According the author, this bill is simply about "freedom of
expression," a "fundamental right going back to the founding of our nation." The author tersely
states the issue: "Should people lose their right to freedom of expression simply because they
rent their property? The answer is no. Any discrimination that prevents freedom of expression,
based on whether or not you own property is a denial of rights."
Tenants Together supports this bill because it believes "that tenants have a constitutional right to
post signs in their windows and engage in other similar forms of expression." However, because
case law is not clear and definitive on this matter, Tenants Together contends that "some
landlords unreasonably prohibit tenants from posting political signs. Tenants, who wish to
express themselves by, for example, displaying a political sign in their window, may be putting
their tenancy at risk by doing so."
The Western Center on Law and Poverty (WCLP) and the California Rural Legal Assistance
Foundation (CRLA) believe that a tenant's right to post signs is already protected by the First
Amendment and that Civil Code Section 1942.5 prohibits retaliation against a tenant because of
the tenant's exercise of any right under law. "In practice, however," WCLP and CRLA write,
"these protections are illusory," largely because these rights are nowhere expressly enumerated,
"leaving a tenant to appeal to case law to assert his or her right." This bill, WCLP and CRLA
believe, will clarify this right expressly in statutory language and thereby ensure "that one of our
most fundamental rights is available to all Californians, regardless of whether they have the
financial resources to purchase a home."
ARGUMENTS IN OPPOSITION: Associations of apartment owners and rental property
owners, as well as the San Francisco Association of Realtors, oppose this bill for several reasons,
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including a belief that it will primarily benefit tenants who want to taunt others with "signs of
hate," as discussed above. In addition, opponents content that if landlords cannot force the
removal of unlawful signs, the burden will fall on government entities and that this "will be a
slow, painful, and arduous process;" and that landlords will be cited for violations committed by
tenants, which is "not appropriate or fair." Conversely, the opponents claim that the ACLU has
already prevailed over landlords that have contractually limited the use, location, display and
appearance of non-commercial signs, so "it follows therefore, that the issue is in search of a
problem." Finally, opponents claim that "statutory authorization of rights to display or post
controversial signs may encourage demonstrations, damage to property and violate all of the
other tenants right to quiet enjoyment of property," leaving the opponents to ask: "Why would
the legislature promote potential violence?"
Author's Technical Amendments:
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On page 2, line 5, after "unit" insert: relating to any of the following
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On page 2, delete line 6
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On page 2, delete line 21
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On page 3, line 9 delete "end" and insert: at least
REGISTERED SUPPORT / OPPOSITION:
Support
Tenants Together
Western Center on Law & Poverty
Opposition
Apartment Association, California Southern Cities
Apartment Association of Orange County
Rental Housing Association of Northern Alameda County
San Francisco Association of Realtors
San Joaquin County Rental Property Association
Analysis Prepared by:
Thomas Clark / JUD. / (916) 319-2334