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
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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.
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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
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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
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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.
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