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HomeMy WebLinkAbout08/05/2014 10 Political Signs ReportBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 10. For Meeting of: August 05, 2014 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ITEM TITLE: SUBMITTED BY: SUMMARY EXPLANATION: Report on Political Signs Mark Kunkler, Senior Assistant City Attorney Current city municipal code provisions exempt "political signs" from the "application, permit and fee requirements" of the Sign Code. YMC 15.08.040. However, regulatory sign conditions still apply. 10. Political signs advertising a candidate or candidates for public elective office, a political party, or promoting a position on a public issue during a campaign [are exempt]; provided, that: a. All political signs shall be removed within fifteen days following the election, except that in cases where a general election follows a primary election, those signs for candidates whose names will appear on the ballot in the general election may be displayed during the interim period and up to fifteen days after the general election; and b. No political sign shall be erected upon any private property without the permission of the resident or owner thereof, and, in cases where there is no occupied structure on the property, no political signs shall be placed thereon without the written consent of the owner of the property. YMC 15.08.040(10). Political signs are included within the free speech protections of the First Amendment of the U.S. Constitution. Because of this, consideration of regulations pertaining to political signs is subject to heightened scrutiny by the courts. The attached article discusses the elements of this scrutiny as developed by the courts, and was drawn from Municipal Resources & Services Center (MRSC). As discussed in the article, public streets, sidewalks and parks are traditional public forums for political speech, meaning that regulation of political signs upon such property will be subject to "strict scrutiny" by the courts. This is intended to provide an introduction to the issues involved in regulation of political signs. As always, if further research is desired, we would be happy to provide further analysis. Resolution: Ordinance: Other (Specify): Discussion/Article Contract: Contract Term: Start Date: End Date: Item Budgeted: NA Amount: Funding Source/Fiscal Impact: Strategic Priority: Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: RECOMMENDATION: Improve the Built Environment City Manager Presented for information and consideration. ATTACHMENTS: Description Upload Date Legal opinion '7/31/2014 Political Signs Article '712&12014 Type Cover Memo Backup Materliall CITY OF YAHIMA LEGAL DEPARTM ENT 200 South Thkl Strmt,Yak3n a,W among loll 98901 (509)575-6030 Fax: 609)575-6160 M EM O RANDUM TO: Honorable Mayor and Members of the City Council Tony O'Rourke, City Manager FROM: Jeff Cutter, City Attorney DATE: July 31, 2014 SUBJ: Political Sign Regulation — Brief Summary The City Legal Department was asked to provide a legal summary of the status of political sign displays within the City, particularly with respect to opportunities to prohibit them outright, if not prohibited to limit the number of signs posted, or to prohibit posting on and within certain areas where the signs have traditionally been located. Included within this packet of information is a summary provided by MRSC on the status of political signs generally, as seen by the constitution of the State and the United States, as well a brief analysis of the right associated with political campaigning and the restrictions on efforts taken to limit or prevent political campaigning. Also included is a short summary analysis of the state of the law with respect to the issues raised by the Council, perhaps more specific and detailed concerning those specific questions. The brief bottom-line state of the matter of political sign regulation is fairly straightforward, as evidenced by the case analysis attached. In short, if the City has allowed a particular forum to be utilized by candidates to display political signs in the past, then even a forum that may not have been typically considered a public forum for purposes of that use would be deemed a public forum based upon the historic permitted use. If the City has and continues to prohibit the use of other public property or locations that has not been deemed a typical public forum, as is the case with the display of political signs on public sign posts and poles, then those particular locations would not be deemed to have become public forums. The City of Yakima has allowed the use of its street median strips to be used for the display of political signs for a long time. They would be deemed legitimate public forums by the court the same as the public rights-of-way associated with public streets and public parks, both of which have long been recognized as public forums for political expression. Distinguished from the Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 2 medians, the City's sign posts have not been permitted to be utilized for expressive displays and would not be perceived as public forums for expressive speech. Finally, as is evidenced in the legal memorandum and summary MRSC report, efforts to limit the displays in number have not been successfully defended and would not be advisable for the City to engage in. If the Council has further questions in this regard I would be happy to provide additional information. Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 3 MEMORANDUM July 22, 2014 TO: Jeff Cutter, City Attorney Yakima City Legal Department CC: Cynthia Martinez, City Prosecutor Yakima City Legal Department FROM: Esdras M. Rivera, Rule 9 Intern Yakima City Legal Department SUBJ: Political Sign Restrictions By assignment previously acknowledged, you have asked me to research the following: Question Presented 1. Can city municipalities issue flat prohibitions on political signs? 2. Can city municipalities restrict the manner, quantity, or place of political signs? Brief Answer 1. It depends, but probably not. 2. The City has some control but must be careful on when, where, and how. Analysis Political campaign signs are at the apex of the hierarchy of speech forms protected by the First Amendment. Arguments advanced by local governments to justify restrictions on speech have become rather predictable and often expressed as follows. First, governing bodies often claim that the ordinance in question merely regulates "time, place, and manner" of speech, rather than discriminatorily eliminating political communication altogether. Laudue v. Gilleo, 114 S. Ct. 2038, 2046 (1994); Rappa v. New Castle Country, 18 F.3d 1043, 1050 (3d Cir. 1994). Second, they often argue that the regulatory ordinance in question does not regulate the speech at all, but merely the undesirable "secondary effects" created by the signs that are the subject of the regulation. Ladue, 114 S. Ct. at 2043-44; Rappa 18 F.3d at 1069. Third, the argument is Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 4 often posed that commercial speech may be preferred to noncommercial speech. Compare Rappa, 18 F.3d at 1066-77 with Outdoor Systems Inc. v. City of Mesa, 997 F.2d 604 (9th Cir. 1993), holding that a city sign code favoring noncommercial speech did not violate the First Amendment. The constitutionality of a sign ordinance largely depends upon what the restriction prohibits and how it is prohibitive. When addressing this issue courts most often inquire into the following: (1) What— Is the speech protected under the First Amendment? Does the regulation restrict conduct or speech? Does the regulation restrict commercial or noncommercial speech? (2) Where — Does the regulation curtail speech in the public forum? (3) Why— What is the nature and the importance of the governmental interest advanced by the restriction on speech? A. Four Categorical Distinctions on Regulating Signage Courts have articulated four criteria that help to determine whether a sign ordinance violates the First and Fourteenth Amendment: (1) whether the prohibited signs are posted on public or private property; (2) whether the prohibited signs display commercial or noncommercial messages; (3) whether the prohibited signs convey information related to the premises where the sign is located (an on-site sign) or to a remote business or offering (an off-site sign); and (4) whether the prohibition restricts particular content (a content -based restriction) or does not address the content (a content -neutral restriction). The Two Easy Cases: Localities May Ban All Signs on Public Property, But May Not Ban all Signs on Private Property 1. Public vs. Private Property A local government may constitutionally prohibit all signs from being posted on public property. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). Noting that the Los Angeles ordinance banned the posting of all signs on public property and was, therefore, content -neutral, the Court upheld the ordinance as a valid time, place, or manner restriction on speech. This restriction is not to be confused with public rights-of-way, however, as shall be discussed later. Furthermore, the Supreme Court held that a community may not prohibit all signs from being posted on private property without violating the First Amendment. Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 5 City of Laude v. Gilleo, 512 U.S. 43, 48 (1994). According to the Court, a total ban on signs posted on private property "simply prohibit[ed] too much speech." Id. at 51. Furthermore, since signs are a form of property, a city's authority to regulate existing signs is also limited by the "takings" provisions of the state and federal constitutions. The Hard Cases: Prohibiting Fewer Than All Signs Moving away from these extremes, can a local government prohibit only some signs on public property or private property? And if so, when? May municipalities prohibit political campaign signs in public rights -of -ways? 2. Commercial vs. Non-commercial Speech The U.S. Supreme Court held that communities may constitutionally prohibit some signs while not restricting other signage if: (1) under the prohibiting conditions commercial speech cannot be favored over noncommercial speech; and (2) certain select noncommercial speech cannot be favored over other noncommercial speech. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). For example, an effort to exclude election signs, a form of noncommercial speech, may prohibit election signs but still permit other types of noncommercial signs/ speech. It might also be argued that such a prohibition on noncommercial speech shows a preference to commercial speech. Such outcomes have uniformly been held to affront First Amendment values. 3. On -Site vs. Off -Site Speech The U.S. Supreme Court has held that sign ordinances may constitutionally prohibit or restrict off-site commercial signs while allowing on-site commercial signs. In Metromedia, the U.S. Supreme Court explained that a "city could reasonably conclude that a commercial enterprise has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its property for the purpose of advertising commercial enterprises located elsewhere. Id. at 512. 4. Content -Based vs. Content -Neutral Restrictions Content based regulations must pass strict scrutiny analysis to survive a constitutional challenge. Local governments often make one of two common mistakes when enacting content -based sign ordinances. These mistakes render the resulting Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 6 content -based sign ordinance subject to the highest constitutional scrutiny and are often constitutionally fatal. First, many sign ordinances define the different categories of signs to be regulated based on the subject matter or message conveyed. For instance, local ordinance sign categories may be identified as "Bulletin Board," "Directional Sign," "Project Sign," "Real Estate Sign," "Murals," "Political Signs," etc. Such ordinances that categorize, and therefore regulate, the signs subject to the messages conveyed are content -based and are nearly always held to violate the First Amendment under a strict scrutiny analysis. See Metromedia, Inc. v. City of San Diego (exempted twelve specifically defined displays). Second, many sign ordinances impose special restrictions on political or campaign signs, resulting in a content -based distinction. Given the fact that political speech lies at the very pinnacle of First Amendment protection, regulations that single out political or campaign signs are extremely problematic and presumptively unconstitutional. B. Additional Items of Consideration 1. Secondary Effects In City of Ladue v. Gilleo, the city's argument was that the ordinance was aimed at controlling the secondary effects of signs rather than at suppressing speech and, therefore, the ordinance was entitled to be treated as a content neutral time, place, and manner regulation. However, a unanimous Court declared the ordinance unconstitutional, focusing on the lack of "alternative channels of communication." The secondary effects exception is not accepted lightly by the courts and usually requires evidence of carefully conducted expert studies that establish the existence of the claimed undesirable effects; mere anecdotes and impressions would not be sufficient. Citizens United for Free Speech v. Long Beach Township Bd. Of Comm'rs, 802 F.Supp. 1223, 1233 (D.N.J. 1992). Thus, it is quite likely that the efforts of a government body to regulate election speech by means of limiting campaign advertising to very small signs would also likely fail. 2. Permitting and Prior Restraints Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 7 Permitting and licensing requirements are also problematic as arguably constituting prior restraint on protected speech. Under the U.S. Supreme Court's decision in FW/PBS, Inc. v. City of Dallas, First Amendment protection against prior restraint extends to municipal licensing programs. 493 U.S. 215, 227-30 (1990). Permitting or licensing schemes for signage must not violate two fundamental constitutional principles: first, the sign ordinance must not "place unbridled discretion in the hands of a government official or agency in determining whether to permit a sign"; and, second, the sign ordinance must place limits on the time within which the decision maker must issue the license [or permit]. Id at 226. Sign ordinances that provide for permitting or licensing should include two safeguards: (1) the licensor must make the decision whether to issue the permit/license within a specified and reasonable time during which the status quo is maintained, and (2) there must be the opportunity for prompt judicial review in the event that the permit/license is erroneously denied. Id at 228. 3. Fees Signage permitting and licensing requirements are constitutionally suspect, particularly with respect to certain classes of signs, if they impose fees on the opportunity to post signs. The First Amendment has long frowned upon the government requiring payment of a fee in order for a citizen to exercise his or her free speech rights. The constitutionality of signage fees is particularly suspect with regard to political, ideological, and religious signs on the basis of the concern that such fees may enable the government to drive disfavored or ill - funded subjects and viewpoints from the public eye and/ or the marketplace. 4. Number and Duration Many courts have stated in dictum that reasonable time limits would be allowed for when and how long temporary signage, particularly political signage, may be displayed. See Verrilli v. City of Concord, 548 F.2d 262, 265 (9th Cir. 1977); Baldwin v. Redwood City, 540 F.2d 1360, 1370 (9th Cir. 1976); McCormack v. Township of Clinton, 872 F. Supp. 1320, 1326 (D.N.J. 1994); City of Lakewood v. Colfax Unlimited Ass'n, 634 P.2d 52, 63 (Colo. 1981)(en banc); Town of Huntington v. Estate of Schwartz, 313 N.Y.S.2d 918 (Dist. Ct. 1970); Fischer v. City of Charleston, 425 S.E.2d 194, 201 (W. Va. 1992). The easy part is defining the period a political or event sign may remain displayed subsequent to the event it pertained to, primarily because the message on the Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 8 sign then has no further utility. Any plausibly reasonable period, such as one week, is likely to be satisfactory. Two cases have approved limits of ten days following elections after which the signs must be removed from display. See Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992), cert. denied, 508 U.S. 830 (1993); Ross v. Goshi, 351 F.Supp. 949 (D. Haw. 1972). Defining the starting point, the date before which election signs may not displayed, is much more problematic venture. At least three cases have struck down sixty day limits as inadequate. See City of Antioch v. Candidates' Outdoor Graphic Service, 557 F.Supp.52, 61 (N.D. Cal. 1982); Van v. Travel Information Council, 628 P.2d 1217, 1227 (Ore. Ct. App. 1981); Collier v. City of Tacoma, 854 P.2d 1046, 1058 (Wash. 1993)(en banc). Another judicial decision similarly invalidated a forty-five day period. Curry v. Prince George's County, 33 F. Supp. 2d 447, 455 (D. Md. 1999). In a decision that the U.S. Supreme Court summarily affirmed, a Federal Court of Appeals declared in dictum that a three week limit was inadequate. See John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980) of 'd, 545 U.S. 916 (1981). Two decisions have upheld general restrictions on the total time temporary signs may be displayed; however, the cases made no specific reference to election dates. See City of Waterloo v. Markham, 600 N.E.2d 1320 (Ill. App. Ct. 1992)(allowing ninety days total for all temporary signs); Brayton v. City of New Brighton, 519 N.W.2d 243 (Minn. Ct. App. 1994)(during apparently undefined "election season"). Similarly, the Fourth Circuit found that an ordinance limiting the number of temporary political election signs that could be placed infringed on free speech rights by preventing proponents from expressing support for more than two candidates in an election. Arlington County Republican Comm. v. Arlington County, 983 F.2d 587, 594 (4th Cir. 1993). C. Public Forum Doctrine, Public Rights -of -Way, and Traditional Public Fora The Supreme Court has classified publicly owned property into at least three types of fora: (1) traditional public fora; (2) designated open public fora; (3) nonpublic fora. See generally Gregoire v. Centennial Sch. Dist., 498 U.S. 899 (1990). The traditional public forum consists of public streets, sidewalks, parks, and other similar public right-of-ways Cf. Perry Educ. Ass'n, 460 U.S. at 45; Schneider v. New Jersey, 308 U.S. 147, 163(1939); Hague, 307 U.S. at 515. A "street" includes the entire right-of-way, not just the paved areas. Accordingly, an ordinance that imposed Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 9 unreasonable restrictions on signs in areas "adjacent to highways", but still within the public right-of-way, was overturned. See Van v. Travel Information Council, 628 P.2d 1217 (Ore. App. 1981). Governing bodies often argue that they can regulate the public right-of-way to prohibit election signs for aesthetic or safety interests. This is a fairly typical "secondary effects" argument. See Metromedia, 453 U.S. at 507-08 (plurality opinion). However, most regulations restricting political signs run afoul of the traditional preference for political speech and also violate the public forum doctrine under the First Amendment. In Rappa v. New Castle County, the plaintiff saturated the roadways throughout Delaware with campaign signs in an effort to raise his name recognition. Municipal officials seized and removed Mr. Rappa's signs from the public right-of-ways. The district court subsequently granted Mr. Rappa summary judgment on free speech grounds. The Third Circuit affirmed based upon other theories in a complex opinion. In Aiona v. Pai, 516 F.2d 892 (9th. Cir. 1975), the Ninth Circuit addressed a regulatory ban on movable political campaign signs placed on sidewalks and other areas adjacent to public highways. The court struck down the ban, finding that such public sidewalks and thoroughfares adjacent to highways were "traditional First Amendment forums" for such signs. However, in City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 814 (1984), the Court distinguished utility poles from sidewalks. In Vincent the public forum argument failed because the parties failed "to demonstrate the existence of a traditional right of access respecting such items as utility poles for purposes of their communication comparable to that recognized for public streets and parks." Two reasons likely support the Vincent decision: (1) Vincent's repeated emphasis on the need for viewpoint rather than content neutrality, and (2) the Los Angeles ordinance in Vincent contained a host of specific exemptions that were similar or identical to those that proved fatal to the San Diego ordinance in Metromedia. However, for no explained reason the Vincent court ignored those issues. D. Governmental Liability for Unconstitutionally Restricting Signage Localities that enact and enforce unconstitutional restrictions on signage may be subject to legal liability in the form of both injunctive relief and damages. Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 10 E. Conclusion: Election Signs Constitute Protected Political Speech It's a classic catch-22. If the City only excludes political/election speech, but does permit commercial or other speech, then such state action is content -based and subject to strict scrutiny analysis. In order for the City to succeed under this level of review it must demonstrate to the court that its regulation is necessary to serve a compelling state interest, and that it is narrowly tailored to achieve that end in the least restrictive manner possible. In Perry Education Ass'n v. Perry Local Educators' Ass'n, the Court made it clear that under the guise of time, place, and manner regulation, the government may not prohibit all communicative activity in a traditional public forum. 460 U.S. 37, 45 (1983). Although safety and aesthetics have sometimes succeeded as "significant" government interests, they have never been found to be a "compelling" government interest, and the courts have narrowly construed this interest in traditional public fora or content -discrimination signage cases. When state action affects political speech, in the words of a unanimous Supreme Court, it "trenches upon an area in which the importance of First Amendment protections is at its zenith." Meyer v. Grant, 486 U.S. 414, 425 (1988). A core principle of the First Amendment is that "government has not power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept of Chicago v. Mosley, 408 U.S. 92, 95 (1972). Government is forbidden from favoring one viewpoint over another as well as from seeking to avoid public controversy by banning speech on an entire subject. Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537 (1980). Furthermore, the court holds that speech concerning public affairs is more than self- expression; it is the essence of self-government. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Small election signs that are placed in the public right -of way have from ancient times been used for "communicating thoughts between citizens, and discussing public questions." Hague, 307 U.S. at 515. Campaign signs placed in such locations have been accorded great constitutional protection because of their location. Baldwin v. Redwood City, 540 F.2d 1360, 1366 (9th Cir. 1976), 431 U.S. 913 (1977); Aiona v. Pai, 516 F.2d 892, 893 (9th Cir. 1975). Memo to Jeff Cutter re Political Campaign Signs in the City of Yakima July 22, 2014 Page 11 Because of the Supreme Court's recent fractured or sporadic use of the forum doctrine, however, the nature of the forum at issue may be overlooked or less important to a judicial determination. An ordinance banning political signs within a geographical location, restricting the number of signs that may be posted, or imposing regulations for aesthetic considerations would most likely be stricken as unconstitutional by a reviewing court. King County Bar Bulletin, September 2004. All rights reserved. All the content of kcba.org is copyrighted and may be reproduced in any form including digital and print for any non-commercial purpose so long as this notice remains visible and attached hereto Local Regulation of Campaign Signs By Zach Lell Political campaign signs are a rite of the Fall election season. As predictable as harvest moons, falling leaves and football games, each autumn inevitably ushers forth a massive proliferation of campaign signs vying for public attention and votes. Inexpensive and easy to distribute, small political signs are viewed as an effective advertising mechanism by candidates, an administrative and legal headache for the municipalities charged with regulating them, and either an inspiration or eyesore by the general public. Love them or hate them, signs promoting political candidates or ballot issues implicate a unique regulatory framework with deep constitutional roots. Campaign messages enjoy substantial protection under both the United States and Washington Constitutions. Courts have consistently acknowledged that "the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office."' Political signs are also protected by Washington statute, which criminalizes the removal or defacement of lawfully placed political signs without authorization.2 The extent of governmental regulatory authority over political signs depends in large part upon a sign's location. Signs displayed on private property are treated differently than those located on public land, and public property itself is legally differentiated into various categories under the relevant legal standard. Public Property In the context of public property, restrictions on political speech are governed by "forum analysis" — a judicial doctrine that divides public property into three main categories. The first category is the "nonpublic" forum, encompassing governmental property "which is not by tradition or designation a forum for public communication."3 In addition to imposing reasonable time, place and manner regulations on speech, governments may reserve such property for its intended purposes by excluding particular speech as long as the regulations are reasonable and viewpoint neutral.4 As a general rule, campaign messages may be flatly prohibited on such property. The second category of government property is the "limited public forum", which arises when governments create a public forum for a limited purpose, such as use by certain groups or the discussion of certain subjects.5 Such property may be validly reserved for speech consistent with its specified purposes, but all speakers or subjects falling within the forum's permitted designation must be afforded equal treatment. A public entity creating this type of limited forum may not, for example, permit the display of Democratic party signage while simultaneously excluding Republican signs. The final — and most important — category of public property is the "quintessential" or "traditional" public forum, encompassing "places which by long tradition or government fiat have been devoted to assembly and debate."6 The quintessential public forum includes such traditional gathering places as streets, sidewalks and parks, which "have immemorially been held in trust for the use of the public and ... for purposes of assembly, communicating thoughts between citizens, and discussing public questions."17 (Significantly, the government may {JZL578531.DOC;1 \99925.002222\ } King County Bar Bulletin, September 2004. All rights reserved. All the content of kcba.org is copyrighted and may be reproduced in any form including digital and print for any non-commercial purpose so long as this notice remains visible and attached hereto effectively "create" a public forum by opening traditionally nonpublic fora for broad expressive use.8 Once opened, such property is subject to the same rules governing the quintessential public forum.)9 Governmental restrictions on political expression in the quintessential public forum are subject to extremely demanding judicial scrutiny. Bans on such speech are almost categorically unconstitutional, and time, place and manner restrictions are valid under the federal analysis only if they (1) are content -neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels of communication.10 Washington applies an even more stringent test, requiring that the proffered governmental interest be "compelling" rather than merely "significant."" The seminal Washington case is Collier v. City of Tacoma. At issue in Collier was a Tacoma ordinance that prohibited the display of political campaign signs on public property more than 60 days prior to the election advertised by the sign.' Michael Collier, an underdog congressional candidate who had posted campaign signs in the parking strips located between city streets and sidewalks in violation of the 60 day requirement, challenged Tacoma's regulatory scheme as a free speech violation.13 The Washington Supreme Court sided with Collier and invalidated the city's pre-election durational limit on campaign signs under the three -prong time, place and manner analysis recited above.14 Emphasizing the constitutional protection afforded to political speech in the quintessential public forum, the Collier court rejected Tacoma's proffered justification for the restriction (community aesthetics and traffic safety) as insufficiently "compelling", and concluded that the ordinance was neither narrowly tailored nor allowed adequate alternative channels of communication.15 Critical to the court's conclusion in Collier was the recognition that small, portable campaign signs represent a practical, cost-effective and highly localized campaign medium for political candidates.16 Collier reaffirms the enhanced judicial protection enjoyed by campaign signs in the public forum, and underscores the heightened scrutiny governmental restrictions must endure when regulating communications of this type. Private Property Municipalities are typically even more constrained in attempting to regulate campaign signs on private property — particularly in the context of private residential property. In addition to potential "takings" issues implicated by the Fifth Amendment, courts have recognized that political signage displayed at one's home carries special constitutional importance and thus warrants heightened protection. The United States Supreme Court's 1994 decision in City of Ladue v. Gilleo exemplifies judicial sentiment in this area. The municipal ordinance challenged in Gilleo prohibited homeowners from displaying any signage on their premises except identification and "for sale" signs.17 Emphasizing that a "special respect for individual liberty in the home has long been a part of our culture and our law,"18 the Supreme Court struck down the ordinance on First Amendment grounds.19 The Gilleo Court's dicta speaks volumes about the constitutional protection enjoyed by residential campaign signs: 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 {JZL578531,DOC;1\99925.002222\ } King County Bar Bulletin, September 2004. All rights reserved. All the content of kcba.org is copyrighted and may be reproduced in any form including digital and print for any non-commercial purpose so long as this notice remains visible and attached hereto candidates, parties or causes Small political campaign posters have maximum effect when they go up in the windows of homes, for this demonstrates that citizens of the district are supporting your candidate — an impact that money can't buy.20 Thus, because of their inexpensiveness, convenience and intrinsic identification with the landowner, yard and window signs effectively "have no practical substitute" and are protected accordingly under the Constitution.21 Local governments have slightly greater latitude in regulating campaign signage on private, nonresidential property. The key legal requirements in this context generally prohibit governmental restrictions from favoring commercial speech over noncommercial, regulating noncommercial speech on the basis of content, or vesting excessive regulatory discretion in the hands of local officials. Time, Place and Manner Restrictions Although municipalities may not categorically ban campaign signs altogether, most local governments do regulate the non -communicative aspects (e.g., size, location and duration) of such signs. Common restrictions include forbidding vehicular or pedestrian traffic blockage, square footage requirements for each sign face, and prohibiting the display of campaign signs on public property beyond a specified post-election period. Regulations of this type address the physical attributes, as opposed to the content, of campaign signs. Municipal time, place and manner restrictions on campaign signs vary substantially among local jurisdictions. Because each city or county may have adopted a regulatory scheme containing unique aspects, it is advisable to consult the relevant municipal code prior to posting a campaign sign. Zach Lell is an associate with Ogden Murphy Wallace P.L.L.C. His practice focuses on municipal and land use law. He can be reached at (206) 447-700 or by email at zlell@omwlaw.com. Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223 (1989). 2 RCW 29.84.040. 3 Perry Edu. Ass 'n v. Perry Local Edu. Ass 'n, 460 U.S. 37, 46 (1983). 4 Id. 5 Id. at 46 n.7. 6 Id at 45. Id. 8 Id. 9 Id. at 46. 10 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). 11 Collier v. City of Tacoma, 121 Wn.2d 737, 747, 854 P.2d 1046 (1993); Bering v. SHARE, 106 Wn.2d 212, 234, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050 (1987). 12 Collier, 121 Wn.2d at 742-43. 13 Id at 741-44. 14 Id. at 760. 15 Id at 754-60. 16 Id . at 760. 17 City ofLadue v. Gilleo, 512 U.S. 43, 45-47 (1994). 18 Id at 58. 19 Id. at 58-59. 20 Id. at 54-55 & n.12 (citation and internal punctuation omitted). 21 Id at 57. {JZL578531„DOC;1\99925,002222\ }