Letter to the Mayor of Independence, Kentucky

On August 5, the Center's Assistant General Counsel, Reid Cox, submitted this letter informing the Mayor and City Council of Independence, Kentucky, that limiting when political signs can be posted raises constitutional concerns.

August 5, 2004

The Honorable Chris Moriconi
Mayor of the City of Independence
City Building
5247 Madison Pike
Independence, KY 41051

re: Political and Campaign Sign Restrictions

Dear Mayor Moriconi:

It has come to my attention that the City of Independence is considering restrictions that would ban residents from displaying campaign and political signs except in the period from sixty days before until five days after an election. I am the Assistant General Counsel of the Center for Individual Freedom, and in that capacity I have been and continue to be involved with the Center’s efforts to educate municipalities about the constitutional limitations on restricting signage.

The Center for Individual Freedom is a non-profit, non-partisan constitutional advocacy group whose mission is to protect and defend individual rights and freedoms guaranteed by the federal and state constitutions. As a result, the Center is particularly interested in signage restrictions because they inevitably affect free speech and private property rights.

The Center’s concern is that, all too often, municipal sign ordinances abridge the First Amendment rights of citizens and businesses that wish to post or erect signs. As you may already know, the U.S. Supreme Court has long recognized that signs and billboards constitute "a form of communication protected by the Free Speech Clause" of the First Amendment. In fact, the Court noted that signs and billboards possess both "communicative and noncommunicative aspects" and, as a consequence, while a municipality "has legitimate interests in controlling the noncommunicative aspects of the medium, … the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects." Thus, localities must be especially careful in drafting and enacting sign ordinances because improper restrictions may not only be unpopular but also unconstitutional.

You should know that courts across the country have consistently found that restrictions preventing citizens from posting political and campaign signs outside specified time windows are inherently unconstitutional. For example, in the case of Whitton v. City of Gladstone, 54 F.3d 1400 (8^th Circuit 1995), the U.S. Court of Appeals for the Eighth Circuit affirmed a federal district court ruling striking down a sign ordinance that prohibited the posting of political signs outside the period from thirty days before an election until seven days after the election took place.

In fact, as a legal and constitutional matter, it is difficult to impose any type of limitation on political and campaign signs while obeying the commands of the First Amendment because such restrictions usually single out specific content for disfavored treatment. Such content-based restrictions are subject to strict scrutiny and are usually struck down as unconstitutional. Moreover, with regard to political and campaign signs, these concerns are at their zenith because the general rule under the First Amendment is that such core speech receives the highest constitutional protection.

All of the different constitutional limitations on proper signage restrictions are too numerous to mention in this letter and are easiest to understand when considering the specific language at issue. Therefore, it is difficult for me to guide you or the City of Independence in the abstract. Nevertheless, I urge both you and the City to fully consider constitutional concerns before enacting any signage restrictions or regulations. Failing to consider the Constitution at the outset only costs everyone involved more money, time, and frustration, often in the form of litigation or having to reconsider the ordinance.

In support of your efforts, I offer myself and the Center for Individual Freedom as resources to which you can turn with any questions about the constitutionality of signage restrictions. I certainly appreciate your attention to the constitutional ramifications of signage restrictions and wish you much success as the City undertakes the task of considering this important issue.

Sincerely,

Reid Alan Cox
Assistant General Counsel

Enclosure

Return to Current Events Index