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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 Mayors enforcement action, and appeared before
City Council and Councils 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 Citys permitting policy
as well as the exemptions granted by it.
Westovers 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 Georges 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."
* * * * *
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 residents 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.
* * * * *
Displaying a sign from ones 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 . . ..
* * * * *
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 persons
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 governments 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 signs 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 Centers efforts to bring about change to Westovers
sign ordinance.
[Posted
May 17, 2002]
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