Whose Lawn Is It, Anyway?

When we found out Montclair was cracking down on the illegal political propaganda fimly implanted in people's yards, we couldn't help noticing how long those other signs hang around...you know the ones we're talkin' about: the contractor, architect, landscaper, window replacer, gutter cleaner, and just about every home improvement business on the planet.

We know, they've got their own set of rules on the books: advertising signs permitted until the job is done, up to one year. Isn't that kinda like campaigning? So how about letting us boast our political preferences in an election year - to be fair - "until the job is done," instead of limiting it to 65 days?

And what about our First Amendment rights? We got two opinions - one from town attorney Alan Trembulak, the other from concerned citizen with a penchant for legalese, David Herron. Guess who says the town ordinances are illegal?

Trembulak replies: " Regarding the first amendment issue, the law provides that governmental entities are allowed to adopt reasonable regulations regarding 'time, place and manner.' As an extreme example, municipal regulations would prohibit someone from driving around town at 3:00 in the morning with a bullhorn shouting 'vote for ______' even though that person could argue that the regulation impinges on his or her first amendment rights. Similarly, you could not post a giant billboard with a political (or any message) on your roof even though that restriction could also be considered an infringement of free speech."

"These types of 'time, place and manner' regulations are legal and constitutional as long as they are 'content-neutral' i.e., they don’t regulate what is said, but rather how the message is communicated."

Herron writes: "I don't know why town officials are going round and round with this issue about political signs. They know that it is illegal, it has been ruled illegal but many, many courts, including the U S Supreme Court, so what is it that they don't understand. Legally, we must stop wasting money on litigation that does not have to be advanced. Oh, what the hell, read for yourself, what the courts have actually said. I have sent this to Town attorney Trembulak, but, maybe he just doesn't understand all of this legalese."

The issue here is the 45-day durational limitation, which the Ordinance places upon political expression. I must cite two cases: City of Ladue v. Gilleo, 512 U.S. 43 (1994) and McFadden v. City of Bridgeport, 422 F.Supp.2d 659(N.D.W.Va. 2006). In City of Ladue, the United States Supreme Court invalidated an ordinance that bans all residential signs but those falling within one of ten exceptions. The Supreme Court acknowledged that, while signs are protected by the Free Speech Clause of the First Amendment, such signs “pose distinctive problems that are subject to municipalities” police powers”.

Numerous other federal and state courts have followed Ladue in concluding that such a temporal Ordinance violates the First Amendment. In McFadden v. City of Bridgeport, supra, the District Court addressed the constitutionality of an ordinance, which allowed unpermitted political signs only 30 days prior to an election and 48 hours thereafter. The Court concluded that this provision “is content-based since the Ordinance’s temporal restrictions apply only to limited categories of signs and based on what those signs say.” and because “the City’s asserted interests in regulation temporary and political signs are not compelling.” 422 F.Supp.2d at 662. Rejecting the argument that the Ordinance was “content-neutral because its (City’s) interests in aesthetics and traffic safety are not related to the content of the temporary and political signs,” the Court noted that the Town provides no evidence that signs carrying political messages and signs relating to specific events give rise to adverse secondary effects that differ in any way form similarly constructed signs carrying messages Bridgeport allows to be permanently displayed. Political signs and other signs defined as temporary by the City of Bridgeport are regulated differently from other signs based on what they say. Section 1325.07 of Bridgeport’s sign ordinance is a content-based regulation of speech. 422 F. Supp.2d at 674.

Other decisions are also in accord. In City of Painesville Bldg. Dept. v. Dworkin & Berstein, 733 N.E.2d 1152 (Ohio 2000), the Supreme Court of Ohio found that such a temporal ordinance is unconstitutional, concluding that the ordinance was not a narrowly drawn “time, place and manner provision,” but one which could be deemed “to operate to prohibit the display of a political message at the very time it would be most relevant to an issue upon which the citizen wishes to speak.” 733 N.E.2d at 1159. The court reviewed the case law, stating in part:

The overwhelming majority of courts that have reviewed sign ordinances imposing durational limits for temporary political signs tied to a specific election date have found them to be unconstitutional. Whitton v. Gladsone (C.A. 8, 19995), 54 F.3d 1400 (ordinance deeded unconstitutional which limited placement or erection of political signs to thirty days prior to the election to which the sign pertains until seven days after the election); Dimas v. Warren (E.D. Mich. 1996), 939 F.Supp. 554 (ordinance deeded unconstitutional which prohibited posting of political yard signs earlier than forty-five days prior to any election, and ordering removal within seven days after), Orazio v. North Hempstead (E.D.N.Y. 1977), 426 F. Supp. 1144 (holding that no time limit on the display of pre-election political signs is permissible under the First Amendment); Antioch v. Candidates’ Outdoor Graphic Serv. (N.D.Cal.1982), 557 F.Supp. 52(ordinance deeded unconstitutional which limited display of political signs to the period sixty days before election); Collier v. Tacoma (1993), 121 Wash.2d 737, 854 P. 2d 1046 (ordinance deeded unconstitutional which limited posting of political signs to the period sixty days prior to election to seven days after, where no time restrictions were imposed on other temporary signs);Curry v. Prince George’s Cty.,supra, 33 F. Supp. 2d 447 (ban on political campaign signs posted on private residences for all but forty-five days before and ten days after an election deeded unconstitutional); see, also, Christensen v.Wheaton (Feb. 16, 2000), N.D. Ill. No. 99C8426, unreported, 2000 WL 204225 (granting preliminary injunction enjoining enforcement of ordinance the effect of which was to prohibit the display of political signs for more than thirty days; Knoeffler v Mamakating (S.D.N.Y. 2000), 87F. Supp.2d322, 327(noting that “durational limits on signs have been repeatedly declared unconstitutional); Union City Bd. Of Zoning Appeals v. Justice Outdoor Displays, Inc. (1996), 266Ga. 393,467 S.E.2d 875 (limitation of political signs to six weeks prior to and one week after election deemed unconstitutional); McCormack v. Clinton Twp. (D.N.J.1994), 872 F.Supp. 1320 (limitation on political signs to ten days prior to and three days after election deemed unconstitutional).

There is a wealth of authority that has concluded that type of temporal restriction place upon the placement of political signs, when no such temporal restriction is imposed upon other signs is content-based, based purely on the message of the sign, and that there is no compelling interest to justify such a content based restriction.

It is my belief and supported by facts that temporal restriction upon political signs, but not upon other types of signs, (i.e. For Sale signs), are content–based, and that the interests served by such restrictions are not compelling interests pursuant to Montclair’s power, and time restrictions placed upon the display of political signs is not the least restrictive alternative available to achieve these interests.

I hope this helps in your review of Montclair’s sign ordinance, and that you will move quickly to repeal the existing sign ordinance.

Sincerely,
Mr. David Herron
March 15, 2008