A Supreme Court ruling on June 18, 2015 that reversed previous rulings by the Ninth Circuit Court of Appeals and by U.S. District Courts in Arizona will make both the Town of Sweden and the Village of Brockport’s code provisions about political signs unconstitutional.
Most people obey the law because they are law-abiding citizens. And then there are the other people who don’t think the law applies to them. But the creeps who try to bend the local election laws to suit their own purposes have found a loophole that they are already trying to exploit.
Connie Castanada still has three political signs on her front law on Main Street in violation of the Village sign code; even though no court has ruled that the Village sign code is unconstitutional. The Sweden Republican Committee is complaining on their Facebook page that their First Amendment rights are being attacked simply because the code enforcement officer left a door hanger on some of their front doors to advise them that they were violating the village code.
The United States Court of Appeals for the Ninth Circuit hears appeals of cases decided by federal trial courts in nine western states (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) and two Pacific Island jurisdictions (Guam and the Northern Mariana Islands).
On August 10, 2012 the Ninth Circuit Court of Appeals ruled in Clyde Reed, Pastor and Good News Community Church v.Town of Gilbert, Arizona that the Town of Gilbert’s sign ordinance was constitutional. These are the words the Ninth Circuit Court of Appeals used in that case.
“Accepting the prior opinion in Reed v. Town of Gilbert , 587 F.3d 966 (9th Cir. 2009), as law of the case, the panel concluded that the sign ordinance was constitutional because the different treatment of types of noncommercial temporary signs was not content-based as that term was defined in Reed, and the restrictions were tailored to serve significant governmental interests.”
That ruling was the law of the land until this past June. The church appealed the ruling to the US Supreme Court, and the case dragged on for another three years. The Supreme Court case – Reed et al. v. Town of Gilbert, Arizona – was only decided on June 18, 2015.
So it is perfectly reasonable that neither municipality was aware of the repercussions of the ruing, especially since so many previous lower court decisions have ruled that such provisions limiting the size, number, and time period when such election signs may be displayed are constitutional. Here are some excerpts from the Supreme Court Ruling, which has thrown a monkey wrench into the sign ordinances of every municipality in the country.
Gilbert, Arizona (Town), has a comprehensive code (Sign Code or Code) that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including three relevant here. “Ideological Signs,” defined as signs “communicating a message or ideas” that do not fit in any other Sign Code category, may be up to 20 square feet and have no placement or time restrictions. “Political Signs,” defined as signs “designed to influence the outcome of an election,” may be up to 32 square feet and may only be displayed during an election season. “Temporary Directional Signs,” defined as signs directing the public to a church or other “qualifying event,” have even greater restrictions: No more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the “qualifying event” and 1 hour after.
Petitioners, Good News Community Church (Church) and its pastor, Clyde Reed, whose Sunday church services are held at various temporary locations in and near the Town, posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and d for failing to include an event date on the signs.
Held: The Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny. (a) Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. E.g., R.A.V. v. St. Paul, 505 U. S. 377, 395. Speech regulation is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.
(b) The Sign Code is content based on its face. It defines the categories of temporary, political, and ideological signs on the basis of their messages and then subjects each category to different restrictions.
Because of that Supreme Court ruling the Sweden Town Code, which applies to all property in the Town of Sweden outside the Village of Brockport, has to be amended because according to subsection 175-30 C (17) of the Sweden Town Code: “Political signs can be placed 45 days prior to the election, and there are no limits to the number of political signs that can be placed.”
That sentence in subsection 175-30 C (17) will probably not stand the new criteria laid down in the Supreme Court’s Reed et al. v. Town of Gilbert, Arizona decision. So the Town of Sweden will have to change the wording in that section of the code.
The Brockport Village Code has s similar provision which has been on the books for 23 years. According to subsection 43 G (6) (a) and (b) of the Brockport Village Code: “Political signs may be erected no earlier than 37 days prior to the date of any election,” and “Political signs may not be larger than 15 square feet and limited to one political sign per property.”
But it is really quick and easy for the Village Board to make the minor revision needed to comply with the new Supreme Court ruling. Here is the old wording of subsection 43 G (6) (a) and (b) of the Village Code, and suggested new wording of subsection 43 G (6) (a) and (b) of the Village Code that would meet the new standard laid down by the Supreme Court.
OLD subsection 43 G (6) (a) and (b) of the Brockport Village Code
(6) Political signs.
(a) Political signs may be erected no earlier than 37 days prior to the date of any election.
(b) Political signs may not be larger than 15 square feet and limited to one political sign per property.
(c) Political signs may not be placed on Village trees or utility poles.
(d) Political signs may not be placed in the Village right-of-way nor on Village-owned property.
(e) Political signs must be removed within 48 hours after the election (i.e., 2100 hours, 9:00 p.m., of the second day after the election).
NEW subsection 43 G (6) (a) and (b) of the Brockport Village Code
(a) Signs may be erected no earlier than 37 days prior to the date of the event or activity they advertise or endorse.
(b) Signs may not be larger than 15 square feet and limited to one sign per property.
(c) Signs may not be placed on Village trees or utility poles.
(d) Signs may not be placed in the Village right-of-way nor on Village-owned property.
(e) Signs must be removed within 48 hours after the end of the event or activity they advertise or endorse.
The Village Board can easily make this change to Village Code long before the upcoming election on November 3, 2015. The question is will they do it, or will they sit on their butts and do nothing? If the Village Board does nothing, the creeps who try to bend the local election laws to suit their own purposes may just cover every inch of their lawns with ugly political signs.