Center Urges Mayor to Protect Citizens Free Speech Rights

April 18, 2002

The Honorable Suzanne Riffon Kenney
Mayor
City of Westover
500 Dupont Road
Westover, West Virginia 26501

Re: Article 1741: Signs

Dear Ms. Kenney:

On behalf 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.

Specifically, 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.

Caselaw recognizes that a law affecting a property owner’s right to erect a yard sign affects both the owner’s and the candidate’s 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 city’s 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 Court’s most recent decision on sign controls declared unconstitutional an ordinance that applied to a complete ban on residential signs.

In City 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 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. . . . 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 city’s 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."

Despite the fact that Westover’s 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 George’s 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 residences."

Additionally, 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).

In addition 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 14^th Amendment to the U.S. Constitution. The imposition of the fee is overly burdensome and not narrowly tailored to serve an overriding governmental interest.

In assessing 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.

The question 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.

The Center 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 citizen’s freedom to engage in speech in politics and other matters of interest.

Thank you for your consideration of our concerns.

Sincerely,

 

Renee L. Giachino,
General Counsel, Center for Individual Freedom


cc: Peter DeMasters, City Attorney

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