Complaints about political signs lead village to look at drafting law

The Enterprise — Michael Koff

Voorheesville trustees discussed on Nov. 24 complaints about election signs still being posted but such signs on private property are protected by the First Amendment. “There’s nothing that the [village] can do about that,” said Melanie Trimble, the director of the Capital Region Chapter of the New York Civil Liberties Union.

VOORHEESVILLE — The village board has asked its lawyer about possible ways to regulate what he termed “sign pollution” without infringing on the residents’ right to free speech in posting political signs.

The United State Supreme Court in a 1971 decision concluded that local governments could not restrict an individual’s speech based on “its message, its ideas, its subject matter, or its content.”

The ruling forced local governments still looking to regulate free speech to meet a higher judicial-review threshold known as “strict scrutiny,” whereby a court needs to be convinced that the law or regulation being proposed to subvert the United States Constitution is needed “to promote a compelling interest” and is “the least restrictive means to further the articulated interest.”

National security and the protection of public safety and health have been upheld by courts as compelling government interests.

During their November meeting, Voorheesville trustees learned that the village had received calls from residents about political signs still being posted, the general election having taken place three weeks prior to the Nov. 24 meeting. 

Superintendent of Public Works Brett Hotaling said that, with leaf pick-up over, he and his crew would be able to pick up the signs, apparently inferring what was being discussed were the signs that have become ubiquitous along public right-of-ways, at intersections, and in the middle of rotaries every election season. 

But Hotaling was told that the calls from residents were about their neighbors who still had signs up in their yards.

Mayor Robert Conway said to Richard Reilly, the village attorney, “There’s really not a time limit on signage of that sort.”

A 2015  Supreme Court ruling, Reed v. Town of Gilbert Arizona, said that local governments can’t make decisions about how long they allow temporary signs, like the kind used every election season, to be posted based on the date of an event, because that would require reading the sign — which would mean a decision about when and for how long that sign could stay up would be based on its content, which begins to look like government regulating speech

Reilly said during the Nov. 24 meeting that he had spoken with the New York Conference of Mayors in addition to doing his own research to see if there was a way to regulate the signs “in some fashion,” but that would involve the village regulating all signs, not just political signs.

“So it is something that we’ve taken a look at: How to revise our zoning codes so that it meets our needs but would pass muster if it was challenged at any point.” he added. 

Reilly said he could “put some language together” for the board to evaluate a stand-alone local law addressing political signs that could be made part of the zoning code when it is next updated.

The village just overhauled its code last year, having adopted a new zoning law in May 2019.

Conway asked to see the language, stating he wanted to avoid impinging on residents’ right to free speech.“But if you have language that you think can at least address the aesthetics — not the content — but the aesthetics of the signs,” Conway said the board should take a look at it. 

Reilly said that the goal of the language would not be to regulate speech but to try and mitigate the effects of “sign pollution, for lack of a better term.”

The Enterprise asked Reilly last week if there were specific rules or regulations that the village is looking to use to help mitigate the effects of sign pollution.

The village is examining if there are ways to regulate the size or number of signs on a parcel of land, that “would be both appropriate, reasonable, as well as enforceable,” Reilly said, adding that the village was still in the process of “exploring and researching what potential changes could be acceptable.”

 

NYCLU

Melanie Trimble, the director of the Capital Region Chapter of the New York Civil Liberties Union, told The Enterprise if the signs were on someone’s personal property, then they can stay up year-round if the homeowner chooses to do so, and “there’s nothing that the [village] can do about that.”

The village could also just ask the property owner to take down the sign, keeping in mind that it has to remain “completely” content-neutral in its requests, she said, and the village can’t choose which signs it would ask to come down — it also can’t remove the signs on its own volition. 

When political signs are posted on public property, the village has the right, post-election, to take down those signs. “Other than that,”  Trimble said, “that’s part of the country we live in: People get to express themselves in their own space.”

She added, “We ought to embrace that, rather than stifle it.”

But, if someone has a commercial sign on his or her property — for example, the owner advertises that she sells eggs — then the village can regulate that sign all it wants, she said.

Asked if the village could regulate all signs, so as not to appear to be targeting just the political ones, Trimble said that the First Amendment has a “carve-out” for freedom of expression, and that there is a “distinct difference” between a commercial and political sign.

So, even if the village tries to write a new law or zoning ordinance regulating signs, Voorheesville “will never be able to carve out or regulate political signage on someone’s personal property,” Trimble said, because it would violate the Constitution. 

“It’s been tried before,” she said of municipalities trying to regulate political signs while trying not to appear to be regulating political signs. 

Supreme Court cases

The United States Supreme Court in 1994 said a Missouri city ordinance that prohibited all residential signs — with some exceptions — was unconstitutional. 

In 1990, Margaret Gilleo, who lived in the city of Ladue, placed a sign in her front yard protesting the First Gulf War in Iraq. 

The sign subsequently disappeared, and its replacement was torn down as well.  Gilleo reported the incidents to local police — who told her that she shouldn’t have had the signs up in the first place; they were prohibited by law.

In response, Gilleo sought and was denied a variance for the sign by the Ladue City Council.  

Gilleo then filed a federal lawsuit against the city. 

After five years of court battles, the issue made its way to the Supreme Court. 

In declaring the ordinance unconstitutional, the Supreme Court said that, even though the city of Ladue “may regulate the physical characteristics of signs, local governments may not allow some signs and ban others based upon their content,” according to planning and land-use guidance from the New York Department of State

Two decades later, the Supreme Court reaffirmed and strengthened noncommercial speech-and-sign rights. 

The Good News Community Church in Gilbert, Arizona, had no permanent home, so every weekend, signs had to be placed around the town directing congregants to the location of the next service. But a town ordinance said that the temporary signs, which were also size-limited, could only be posted 12 hours before the service and had to be taken down an hour afterward.

The Supreme Court took issue with the ordinance because it gave greater latitude to political signs, which were allowed to be five times as large as the ones the church used to direct congregants to its service and were permitted to stay up for months; the ordinance also gave more leeway to ideological, issues-based signs, which never had to come down. 

The town said  it had a compelling interest to regulate the directional signs used by the church differently from other types of signs because of traffic-safety concerns and the need to preserve town aesthetics.

The Supreme Court unanimously disagreed with the argument, stating that the ordinance violated the First Amendment and discriminated against signs directing people toward church while favoring the signs from politicians.

But the court, according to the New York Department of State, still left the door open to some sign regulation, “opin[ing] that its decision will not prevent governments from enacting effective sign laws. 

“Local governments have ample content-neutral options available to resolve problems with safety and aesthetics, including regulating size, building materials, lighting, moving parts, and portability. Municipalities may still be able to forbid postings on public property, so long as it does so in an evenhanded, content neutral manner.”

 

Village code

The 2019 update to Voorheesville’s zoning code already includes some of the content-neutral sign regulations that had been laid out by Justice Samuel Alito in a concurring opinion in the 2015 Reed v. Gilbert decision. Voorheesville’s code, for example, has prohibitions against certain types of lighted signs — internally-illuminated, glass-tubed neon signs — and against signs that move, flash, revolve, or animate. 

And, while Voorheesville allows for 13 different types of signs to be installed in the village without an OK from either the planning commission or code-enforcement officer, it does place some limitations on those signs.

Village code says that political signs are allowed to be displayed four weeks prior to an election and that they have to come down three days after, and that the sign cannot be larger than 32 square feet in area.

But a legal memorandum on election-sign restrictions from the state’s Department of State says that “some local governments have attempted to deal with the clutter of election campaign signs by limiting the period in which they may be posted,” and that municipalities will try to regulate things like the number of posted signs or specify the period before and after an election when signs are allowed to be put up.

“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 legal memo states, and concludes, “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.” ​

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