Scott Forsyth, The Daily Record Newswire
We are in the middle of the silly season, hearing candidates proclaim their virtues and the failings of their opponents, in an effort to woo our votes. Very soon up will pop another sign of the season — lawn signs.
Municipalities take a dim view of lawn signs, placing all sorts of restrictions on their use. The municipalities do this in the name of reducing visual pollution, promoting economic development, protecting property values and improving traffic safety.
Unspoken is the desire of those in power, Republican and Democrat, to curtail the ability of challengers to increase their name recognition or to spread the word of their cause. Lawn signs are a very cost-effective way of advertising a candidacy or making a political statement.
Enough philosophy, let us look at one municipality that went the full nine yards in the defense of its sign ordinance — the town of Mamakating. It is located in Sullivan County, near Woodstock. From this small, bucolic community came a big-time lawsuit, Knoeffler v. Town of Mamakating, 87 F. Supp.2d 332 (SDNY 2000).
Mr. Knoeffler was your typical thorn in the side of town government. To protest an adverse town court decision, he posted six signs in his yard. One announced “Neighbors and Town Want to Do Away With Our Freedom of Speech and Our Right to Protest.” Another proclaimed “God Will Not Forsake Us.”
At that time, the town code required a property owner to obtain a permit from the Zoning Board of Appeals “for signs in the interest of the public information and convenience,” such as his. The code did not specify any criteria for the issuance of the permit.
Mr. Knoeffler sought a permit and was granted one, for just 13 days. He sued and moved for summary judgment.
Before the court could decide the motion, the town amended its code to require a permit for all signs. The town did exempt 18 types of signs, such as flags, memorial plaques, not-for-profit emblems and banners, real estate sale and rental signs, and garage sale signs.
Political lawn signs were not one of the 18, meaning a property owner had to apply for and obtain a permit from the building inspector. The applicant had to supply a picture of the sign and pay a fee of $25. The building inspector had to grant the permit if the application was complete.
A political lawn sign could be erected no earlier than 15 days before the election and had to be removed within 15 days after the election.
The original sign law and the amended sign law contain features found in many sign laws in our area. And the court held that most of the features violated the plaintiff’s First Amendment rights.
The court reviewed the original law first and found the permit requirement to be a prior restraint on speech. The law did not contain the “narrow, objective and definite standards to guide the licensing authority” required by the Supreme Court, Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969). The Zoning Board of Appeals could exercise its “unbridled discretion” to suppress speech it found offensive.
Turning to the amended law, the court struck it down too. The court determined the law regulated speech based on its content. The court cited all of the exemptions and noted many of the categories involved commercial speech. Commercial speech is accorded less protection under the First Amendment than noncommercial or political speech, Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).
Since the town imposed greater restrictions on lawn signs expressing political statements, it had to show the restrictions were necessary to serve a compelling government interest and were narrowly drawn to achieve that interest.
The court doubted the promotion of aesthetics and traffic safety were sufficiently compelling interests. Even if they were, the amended law was not narrowly drawn. The town offered no evidence that political lawn signs created greater traffic hazards or more visual clutter than the signs allowed without a permit.
The time limits on the posting of political lawn signs were also a content-based regulation that could not withstand strict scrutiny. The court cited several other decisions which so held.
Actually the legal contest was not close. In 1994 the Supreme Court invalidated a ban on the posting of political signs on private property. It stated “(w)ith rare exceptions, content discrimination in regulations of the speech of private citizens on private property ... is presumptively impermissable, and this presumption is a very strong one,” City of Ladue v. Gilleo, 512 U.S. 43, 59 (1994). The town of Mamakating could not overcome the presumption, just like the city of Ladue.
A municipality may regulate “the physical characteristics”of signs, such as size and setback, provided the regulation does not disfavor political speech.
What do you do if you want to post in your lawn a sign for your favorite candidate? Study the local sign ordinance. Comply with the provisions that regulate physical characteristics. Ignore the provisions that require a permit or discriminate against political speech based on its content. The latter provisions violate the First Amendment.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
