Legal Memorandum LU02


Some local governments have attempted to deal with the clutter of election campaign signs by limiting the period in which they may be posted. Typical local regulations specify a period after an election by which such signs must be removed. Some local regulations also limit the posting of such signs to a specified period before a primary or election or the number of such signs that may be posted.

If challenged, such local regulations are likely to be struck down by the courts as an unlawful interference with the right of free expression as guaranteed by the First Amendment to the United States Constitution. The main flaw in a local law or ordinance that applies specifically to election signs is that it imposes restrictions based on the content or message. Local legislation that regulates signs must be content neutral, meaning it must apply equally to all signs, regardless of message. While local governments have greater leeway in regulating commercial signs, restrictions on noncommercial signs, including those that support a candidate, must be limited to time, place and manner of posting, and must adhere to the following criteria:

1. The regulations must be justified without reference to the content of the signs subject to the law (i.e., content neutral);
2. The regulations must be narrowly tailored to serve a significant governmental interest; and
3. The regulations must leave open ample alternative channels for communication of the information.

Clark v. Community for Creative Nonviolence, 468 U.S. 288, 293, 82 L.Ed.2d 221, 227, 104 S.Ct. 3065 (1984).

Applying well established principles of constitutional law, a federal appeals court decided in 1995 that provisions of the municipal sign code of a town in Missouri that specifically regulated political signs were content-based and, therefore, unconstitutional as impermissible restraints on free speech. Whitton v. City of Gladstone, Missouri, 54 F.3d 1400 (8th Cir. 1995). The section of the code that limited the time in which political signs may be posted was found to be both content based and constitutionally suspect by granting certain forms of commercial speech a greater degree of protection than noncommercial political speech. For example, the limitations did not apply to "for sale" signs, that fall into the category of "commercial speech."

The justification for the time limitations was to curtail traffic dangers which political signs may pose and to promote esthetic beauty, but the regulation did not apply the restrictions to identical signs displaying nonpolitical messages. Thus, the regulation "differentiated between speakers for reasons unrelated to the legitimate interests that prompted the regulation." 54 F.3d at 1407, quoting National Amusements, Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir.), cert. denied, 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995). The Court in this case applied similar reasoning in striking down provisions of the sign code that prohibited external illumination of political signs and made candidates responsible for violations involving their political signs, including failure to remove within time limits specified in the code.

However, local legislation that prohibited the posting of all signs on public property has been upheld by the courts. City Council v. Taxpayers for Vincent, 466 U.S. 789, 808, 80 L.Ed.2d 772, 104 S.Ct. 2118 (1984). Thus, a provision of the zoning code of the Town of Orangetown, New York that prohibited the posting of signs on public property without a permit from the Town Board was upheld as constitutional, even when it was used to prohibit the posting of political signs along public streets. Abel v. Town of Orangetown, 724 F.Supp. 232 (S.D. N.Y., 1989). The result would likely have been different if the law only prohibited the posting of political signs.

Local legislation that specifically targets political signs for removal within a specific time period, or that specifically prohibits the posting of campaign signs on public property, is likely to be struck down if challenged in court as an illegal restriction on the constitutional guarantee of freedom of expression.