Westover, West Virginia Suspends Sign Ordinance;
Stops Mayor From Removing Political Signs From Private Property

By Kim Croyle, Esq.

Following repeated calls by the Center for Individual Freedom to amend a controversial sign ordinance, the City Council of Westover, West Virginia, has directed its Mayor to cease requiring permits for temporary signs and abandon her practice of removing unpermitted signs from private property until City Council has the opportunity to examine and amend its ordinance.

During the time period leading up to the West Virginia primary election, Westover Mayor Suzanne Riffon Kenney sought to enforce a 1957 city ordinance by entering onto private property and removing signs that she determined did not comply with the ordinance because the sign owner failed to pay for a temporary sign permit for each and every sign erected. Some of the signs removed from private property were political yard signs, placed by property owners in support of candidates in local elections. The Center for Individual Freedom provided the Mayor with a letter outlining the unconstitutionality of the ordinance, as well as the Mayor’s enforcement action, and appeared before City Council and Council’s Ordinance and Contract Committee in order to prevent further enforcement of the ordinance. To read the letter and other literature provided to the City, click here.

On April 25, 2002, the Ordinance and Contract Committee directed Mayor Kenney to cease and desist from enforcing the permit provisions of the ordinance and the removal of signs from private property until the issue could be addressed by City Council. On May 6, 2002, City Council voted to extend its voluntary injunction prohibiting the permitting and removal of signs from private property and directed the Ordinance and Contract Committee to make recommendations to Council about amendment of the ordinance.

Apparently, this is not the first challenge Westover has encountered with its sign ordinance. Acting on a tip from several citizens that the very provisions of the ordinance deemed unconstitutional were questioned in 1990 and again in 1998, the Center has filed a request for records under the Freedom of Information Act to determine what action the City has taken in the past, in the event litigation against the City becomes unavoidable. The Center likewise sought information as to the fees generated from the City’s permitting policy as well as the exemptions granted by it.

Westover’s sign removal practice and current ordinance raise serious questions not only in this instance, but for all government actors when it comes to enforcement of code provisions that do not comport with the guarantee of free speech. As the United States District Court for the District of Maryland so eloquently explained in Curry v. Prince George’s County, Maryland, 33 F. Supp. 2d 447 (D.C. Md. 1999),

The United States Supreme Court has held that "the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office." Moreover, "communication by signs and posters is virtually pure speech."

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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 . . .. They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression.

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Displaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because of their location, such signs provide information about the identity of the "speaker." As an early and eminent student of rhetoric observed, the identity of the speaker is an important component of many attempts to persuade . . ..

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A special respect for individual liberty in the home has long been a part of our culture and our law . . .; that principle has special resonance when the government seeks to constrain a person’s ability to speak there . . . Most Americans would be understandably dismayed, given that tradition, to learn that it was illegal to display from their window an 8- by 11-inch sign expressing their political views. Whereas the government’s need to mediate among various competing uses, including expressive ones, for public streets and facilities is constant and unavoidable . . . its need to regulate temperate speech from the home is surely much less pressing . . . (citations and footnotes omitted).

Moreover, courts have reasoned that the summary seizure of a political sign for even a few days can rob the sign’s owner of an important First Amendment right. For these reasons, the First Amendment has been pristinely applied against government attempts to regulate purely political speech.

The Center remains cautiously optimistic that the City of Westover will appropriately amend its sign ordinance without judicial intervention. The Ordinance and Contract Committee will meet again to discuss the issue on May 20, immediately preceding the full meeting of Council. The Center will continue to provide legal authorities to help guide the City, but stands ready to pursue legal action against the City of Westover should its attempts to amend the ordinance fail to pass constitutional muster.

Kim Croyle is a member in the Morgantown, West Virginia, law firm of Bowles Rice McDavid Graff & Love PLLC. Ms. Croyle has handled several cases challenging First Amendment violations by local government officials as a part of her general litigation practice, including the Center’s efforts to bring about change to Westover’s sign ordinance.

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