By Jeffrey J. Fanger
It’s that time of year again when the leaves turn and the yards start sprouting those uniquely fall yard-sign flowers. Every year at this time I get calls from clients and colleagues and even an occasionally enlightened zoning inspector inquiring about the rules and regulations for yard signs.
As the political campaign season heats up the yard sign magically starts popping up often in clusters of three, four or twelve in neighborhoods across our community. Most residents understand that yard signs are simply a traditional way of campaigns and neighbors expressing their first amendment rights of free speech and realize that often these fall fixtures tend to disappear with the coming snow.
There are always a few local officials, grumpy neighbors or anti-yard sign advocates who inevitably every year try to “police” the yard sign invasion. They scream at their local officials to enforce local regulations regarding the size or the timing or the number of yard signs.
Despite numerous Court decisions invalidating countless local ordinances, every year, someone tries again to regulate and control yard signs.
The problem from a legal perspective is that yard signs are a uniquely protected type of speech. Both the Ohio and U.S. Supreme Courts have acknowledged the special importance of yard signs in our political world. Yard signs are more than simply the sign itself. Their very placement in a specific persons’ yard can communicate very different messages.
In 1994 the U.S. Supreme Court delt with the issue in City of Ladue v. Gilleo, the primary case on yard sign regulation. The Court acknowledged that displaying a sign from your residence often carried a message quite distinct from placing the same sign someplace else, or displaying the same information in a different way. The location of the sign therefore is part of the protected speech itself and this makes it all the more harder to regulate.
For example, the Court noted that a yard sign advocating “Peace in the Gulf” in the front lawn of a retired general or decorated war veteran provoked a very different response and communicated different information than the same sign in another neighbor’s yard.
The Ohio Supreme Court in 2000, found that commercial property also carried messages when political signs were displayed there. In that case, Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A. the Court noted that a sign appearing in front of a law firm office perhaps supporting a judicial candidate or member of the legislature again conveys specific information beyond that of the sign itself.
Taken together these two cases make it clear that restricting yard signs on either commercial or residential property is going to be problematic for local communities.
Courts however have found, that signs can be banned from public property such as on a school yard and clearly private property owners have the right to remove signs placed on their property without their permission.
But those limitations are not generally enough for the zealous, advocates of yard sign regulation that get invigorated each fall. They want to stop the signs that appear all across our neighborhoods and shopping centers. They claim the signs are unsightly or that they cause traffic problems or litter.
The Court’s by the way have it right, yard signs are a unique form of political speech. I have been involved in politics all of my life and property owners understand that the signs they display convey a message to their owners. Many a property owner has told candidates that I support or oppose that they can or can not erect a sign based on their support for that candidate. I knew a shopping center owner who made a point of allowing one political party’s candidates to display their signs on his property and forbid other political party candidates from doing the same. That is his right and it’s a right that the Court’s have been correct in protecting. It’s a right that the anti-yard sign advocates simply do not appreciate sufficiently.
The anti-yard sign advocates, think that the right to put up a political sign and their right to restrict signs based on their unsightly appearance are equal rights. This is a common misperception by people. They think all rights are equal and carry equal weight. All rights are not equal. Some rights are more important than other rights and when there is a conflict between the more important rights and the less important rights, the less important rights have to give in. Rights have hierarchies and political speech is at the top.
But what about the horrible clutter and litter potential of the signs, the regulation advocates argue. Didn’t the Supreme Court say we could restrict yard signs for aesthetic reasons? While the Court’s have implied that yard signs could be restricted for aesthetic reasons, in practice the process the Court’s have identified simply does not accomplish the goal that the yard sign regulators want to achieve.
Court’s have in fact indicated that a time duration based on the fact that temporary signs deteriorate is permissible. So a bunch of communities jumped up and said no yard signs more than thirty days before an election. Wham! Unconstitutional ruled Court after Court after Court. Whether the time ban was 3 days, 15 days, 30 days, 45 days, and on and on time limitations over and over have been ruled unconstitutional restrictions on political speech. So many Court’s have ruled this way that it is virtually clear that no time limit that requires the signs to come down is going to survive Court review.
The Ohio Supreme Court gave us some guidance with respect to the time limitation issue in the Painesville case. The Court cited over a dozen cases from across the country that struck down yard sign time duration rules. Instead, the Court indicated that a rule that required a sign that was deteriorated to be replaced or removed after a period of time was permitted if the law could show how long it took for a temporary sign to deteriorate. In other words if a typical yard sign falls apart in thirty days then a community can require the sign to be replaced or removed in thirty days. Notice that the community can not require removal only but that it be replaced or removed.
The problem with that standard is that it does not accomplish the goals of the anti-sign advocates. They don’t want a new fresh sign put up every thirty days. They don’t want any sign there at all. What they fail to appreciate is that yard signs are an inherent part of American free speech and absent meeting a tremendous burden, it is virtually impossible to restrict them.
But what about these huge billboard type signs, or perhaps limiting the number of signs that you can put in your yard? Perhaps we can say that signs can’t be larger than eight feet, or you can’t have more than one sign in your yard. Wrong again, say the Courts.
In 2005, the Court of Appeals in Summit County struck down the City of Hudson’s rule restricting signs larger than eight square feet. The sign in question was thirty-two square feet!
The city had based its rule upon traffic and safety concerns but that was not enough to get past the very high standard necessary to restrict political free speech. The Court called the city’s interests “substantial” in restricting the size of the signs but found that the ordinance infringed upon the right of political candidates to reach a residential audience. The Court of Appeals noted that speech on public issues occupies the “highest rung of the hierarchy of First Amendment values,” and therefore receives and is entitled to special protection. The Court recognized the city’s goals of traffic safety and maintenance of its appearance as substantial but found that “such a concern should not overshadow the basic constitutional rights of its citizens.”
In other words, even though the City had a substantial reason (read “right”) to restrict the signs, that substantial reason was not enough. The City needed more than a legitimate substantial reason it needed a reason strong enough to trump the highest rung of First Amendment values. I don’t know exactly what that is, but I know it is not going to be easy for your average anti-sign advocate to achieve armed only with his or her general annoyance and dislike for the yard sign clutter.
Every year, I get called by local candidates, local officials and the occasional zoning official about yard signs. My answer is always the same. Leave the signs alone. Don’t take them down. Don’t fine them. Don’t get yourself worked up over them. Just ignore them and chances are by Thanksgiving most of them will have gone away.
Instead of being irritated by them, I remind them to be thankful we have a free political system and accept that political signs are a cherished albeit somewhat unattractive part of that system. It just is not worth it to fight over them. The chances of a local community meeting the tremendous legal burden necessary to impinge upon a citizen’s highly protected political free speech rights is almost never achieved.