From a practical standpoint, local sign codes are very, very important . . . yet many municipalities get them wrong. For example, this summer the U.S. Supreme Court determined that a town’s sign code was unconstitutional. The journey of this case all the way up to the U.S. Supreme Court demonstrates the complicated legal balancing act between free speech and a government’s authority to regulate signage.
One particular area where sign codes often go wrong is dealing with political signage. It won’t be long now before political candidates around the nation start planting their signs . . . EVERYWHERE. Once you see the first one, you know the onslaught of them will quickly follow – on every corner, in your neighbors’ front yard, and every 10 feet all along the road you traverse on the way to work in the morning. While many of us recognize the importance of the political process, we grow tired of seeing so many of these signs.
Some municipalities have adopted sign codes which regulate and attempt to limit the number and density of political signs. Often, however, these provisions are technically unlawful and, like the case above, would fail if challenged in court.
Before we talk more about sign codes, I want to remind us all that as a matter of general property law (Town, Village and City Codes aside), a sign may only be placed upon property with the permission of the owner. This means that signs cannot be placed upon that highly visible, vacant, undeveloped parcel on the corner (which is actually owned by somebody), within the grassy right-of-way abutting a public roadway or, oftentimes, even at the entrance to the Town Park without permission of the owner (whether the owner is a private person, a corporation, or a municipality). Many of those signs you see along the roadway are actually within the public right-of-way (which usually extends beyond the pavement of the road well into the grass) and, based upon that municipality’s zoning laws, may be properly be removed by the local municipality.
My second comment on political signs, and sign codes in general, is that per the 1st Amendment, signs may not be regulated on the basis of content or message, but may be regulated on the basis of a number of other things unrelated to message or content(such as size, location, shape, etc.). Therefore, where a sign code singles out and addresses political signs (as many do), that sign code is almost always unconstitutional because it is regulating the message or content of the sign (politics). What, then, are we to do about the impending barrage of political signs?
There is a strategy municipalities can use to address many political signs while still respecting the 1st Amendment – address them based upon the physical sign structure itself, and not in relation to the political message or content on the sign. Political signs during election season almost all share a common characteristic that has nothing to do with the message on the sign itself – structurally, they are temporary signs, comprised of a vinyl or coated cardboard sign face wrapped around metal wire legs. They are designed to go up before the election and to come down thereafter.
Regulations which address temporary signs will most certainly capture most political signs during election season (since they are often temporary signs), allowing a municipality to address the number of temporary signs permitted on a property, the size of those signs, and how long they may remain before they must be removed, for example.
While targeting political signs is unconstitutional, regulating signage based upon the physical structure of sign itself (i.e., a sign designed/constructed to be temporary only) that happens to include many political signs is perfectly permissible. Be sure to get your sign code into shape as this election season quickly approaches!