Suzanne Riffon Kenney
City of Westover
500 Dupont Road
Westover, West Virginia 26501
Dear Ms. Kenney:
of one of your citizens who contacted the Center for Individual
Freedom, I am writing to respectfully urge you to reconsider your
crusade to remove signs from the private property of residents
of Westover and to encourage you to seek appropriate amendments
to Article 1741-Signs (the "sign ordinance"). We believe
your actions and the sign ordinance infringe upon the constitutional
rights of property owners and candidates who wish to erect a yard
sign on private property.
many provisions of Article 1741 trample the First Amendment rights
of individuals guaranteed by the U.S. Constitution. The First
Amendment provides: "Congress shall make no law...abridging
the freedom of speech, or of the press...." The Fourteenth
Amendment makes this limitation applicable to the States and to
their political subdivisions.
that a law affecting a property owners right to erect a
yard sign affects both the owners and the candidates
First Amendment rights. (Craig v. Boren, 429 U.S. 190 (1976).
The constitutional protection afforded political speech has its
"fullest and most urgent application precisely to the conduct
of campaigns for political office." (Monitor Patriot Co.
v. Roy, 401 U.S. 265 (1971)). "Speech on public issues
occupies the highest rung of the hierarchy of First Amendment
values and is entitled to special protection." (Connick
v. Myers, 461 U.S. 138 (1983)(citation omitted).
When a content-neutral
time, place and manner regulation is involved, the United States
Supreme Court has recognized a citys interest in aesthetics
and traffic safety as sufficient to justify signage restrictions
on public property. (Members of the City Council of
Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)).
Yet, the Supreme Courts most recent decision on sign controls
declared unconstitutional an ordinance that applied to a complete
ban on residential signs.
of Ladue v. Gilleo, 512 U.S. 43 (1994), the Court declared
unconstitutional a city sign ordinance prohibiting homeowners
from displaying signs on their property. In ruling the ordinance
in violation of the First Amendment right of free speech, the
Court noted that "[d]isplaying 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. . . . Residential signs are an unusually cheap
and convenient form of communication. Especially for persons of
modest means or limited mobility, a yard or window sign may have
no practical substitute." Although recognizing the citys
interest in litter control, the Court found it unpersuasive, opining
that "individual residents themselves have strong incentives
to keep their own property values up and to prevent visual
clutter in their own yards and neighborhoods incentives
markedly different from those of persons who erect signs on others
land, in others neighborhoods, or on public property."
fact that Westovers sign ordinance does not ban all residential
signs, because the ordinance imposes limitations, including those
of duration, on the posting of political signs on private property,
the right to free speech has been violated. In Curry v. Prince
Georges County, 33 F. Supp. 2d 447 (D.C. Md. 1999),
the court held that on its face the subject ordinance was "unconstitutional
insofar as it imposes durational limits with respect to political
campaign signs posted by individuals on or about their private
the Curry court examined the imposition of a fee or permit
requirement and found such requirements to fare no better. In
ruling that the permit and fee requirements, insofar as they apply
to campaign signs posted upon private residences, are also unconstitutional,
the court stated that "there is no justification for imposing
such requirements in the case of campaign signs posted upon a
private residence. There are no expenses to defray of the sort
attributable to parades and processions . . . [and] [a]
tax based on the content of speech does not become more constitutional
because it is a small tax." (citations omitted).
to the fee being a tax on speech that impermissibly infringes
on citizens guarantee of free speech, the imposition of
a fee deprives indigent persons of equal protection guaranteed
by the 14th Amendment to the U.S. Constitution. The
imposition of the fee is overly burdensome and not narrowly tailored
to serve an overriding governmental interest.
the constitutionality of the fee provision, a court undoubtedly
will consider whether a less burdensome alternative exists to
further the interests of the government. We believe one does.
Rather than impose a fee on speech that may have the effect of
silencing those who cannot afford to speak, the City could amend
section 1741.09 to establish a period after an election during
which signs must be removed from public property or the candidate
or sponsor must reimburse the City for the cost of such removal.
This alternative appears to be relatively risk free.
remains whether the offending provisions can merely be severed
from the sign ordinance. This is unclear. First, the sign ordinance
itself does not provide for severability in the event that a portion
of it is held unconstitutional. Second, the sign ordinance is
also vulnerable for its overbreadth and vagueness. It is unclear,
for example, whether political yard signs fall under section 1741.14,
ground signs, because they tend to be signs "supported by
upright or braces placed in the ground and not attached to any
building," or whether they fall under section 1741.18, temporary
signs, because they may be intended to be displayed for a limited
time period (thirty days under the provision). Each section contains
its share of onerous provisions, for example, the durational limitations
and bond or insurance requirements for temporary signs. What is
clear is that persons of common intelligence must necessarily
guess at the meaning and differ as to its application. Finally,
the exemptions included in section 1741.13 raise constitutional
implications as well because they appear to be based on content
and favor commercial over noncommercial speech.
We are prepared
to support a lawsuit, should that become necessary, but we hope
the restrictions will be immediately withdrawn; our courts are
far too busy to have to adjudicate such machinations. The ordinance
is unconstitutional on its face and as applied. In our view, the
worst violations of law that can occur in this country are by
those who are sworn to uphold the law. In this case, if the restriction
is politically motivated, as has been suggested, it is an unconscionable
usurpation of power.
For the foregoing
reasons, we believe that amendments to the sign ordinance are
imperative. We have attempted to objectively outline legal strictures
and precedents in an effort to avoid costly and acrimonious litigation
for the taxpayers of Westover and ourselves. We strongly urge
you to consider the constitutional implications of the sign ordinance,
the likelihood of it being ruled unconstitutional by a court and
your overzealous removal of constitutionally protected signs.
for Individual Freedom is a nonpartisan, non-profit organization
with the mission to protect and defend individual freedoms and
individual rights guaranteed by the U.S. Constitution, including,
but not limited to free speech rights, property rights, privacy
rights, freedom of association, and religious freedoms. Of particular
importance to the Center are constitutional protections for the
freedom of speech and private property interests, including each
citizens freedom to engage in speech in politics and other
matters of interest.
for your consideration of our concerns.
Renee L. Giachino,
General Counsel, Center for Individual Freedom
DeMasters, City Attorney