By Jill Hassman
The November election season is upon us and as a result we can anticipate the typical array of political signs decorating the municipal landscape. Municipalities often seek to regulate political signs in order to protect public safety, preserve property values, promote tourism, and generally improve the appearance of the community. However, municipal regulations that restrict political signs can create risk – especially those regulations that place durational limits on the amount of time a political sign may be displayed before and after an election.
At the heart of the matter is the First Amendment. The display of a political sign is undeniably an exercise of free speech. In fact, the use of temporary, disposable signs has long served as a primary and efficient way of communicating political messages to the public. Although political signs are entitled to First Amendment protection, they may still be subject to some municipal regulation because, “unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” Ladue v. Gilleo, 521 U.S. 43 (1994).
Political signs are subject to reasonable “time, place and manner” regulations which, when applied in an even-handed fashion, are constitutional. However, a First Amendment violation may occur where a
municipality places time restrictions on political signs without imposing similar types of restrictions on other types of signs (such as those advertising open houses or garage sales). The most common time restrictions contained in municipal regulations that prohibit the posting of political signs within a certain number of days before an election and require removal of the signs within a certain number of days after the election. These types of regulations create potential exposure for violating the First Amendment.
A municipal regulation that treats political signs differently than other signs based upon the messages that they convey would likely be viewed as “content-based.” Courts require such content-based regulations to survive a high standard known as “strict scrutiny.” In order to survive this strict scrutiny and not violate the First Amendment, sign regulations must (1) be necessary to further a compelling government interest; and (2) be the least restrictive means of achieving that governmental interest. Several courts have found that durational limits on political signs are content-based, did not survive the strict scrutiny test, and
therefore violated the First Amendment.
In striking down a post-election removal requirement, one court stated that “there is no natural termination date for a ‘cause’ sign; a cause and a private resident’s passion for it exists as long as the cause exists.” Curry v. Prince George’s County, 33 F. Supp. 2d 447 (D. Md. 1999). The court found that although traffic safety and aesthetics are significant interests, they are not compelling interests, especially given the nature of the First Amendment rights at stake. Id. at 452.
In another case, a complete ban on posting political signs except for a 60-day period immediately preceding the election to which such signs pertain was held to be a violation of First Amendment rights. McCormack v. Township of Clinton, 872 F. Supp. 1320 (D.N.J. 1994).
Does your community’s municipal code place durational limits on political signs? Time restrictions on political signs present potential risk of constitutional violations. If your community’s sign code could be updated to address the laws governing political signs, please contact the firm.