The legalities of political signage before Election Day
By A.J. Wagner
Signs, signs, everywhere there’s signs
Blockin’ out the scenery, breakin’ my mind.
Do this, don’t do that, can’t you read the sign?
— Five Man Electrical Band
It’s that time of year when front yards are covered in a new autumnal blanket of bright colors that make a landscape architect long for winter. Unfortunately, campaign yard signs grow wild beyond front yards and onto highway rights of way, vacant lots and abandoned corners as though their seed were unstoppable. Local governments provide the inorganic weed killing spray of ordinances designed to limit the signs and assure their spread is contained but, like any organism, the signs are taking on an evolutionary defense to the limiting laws. In court after court, sign owners are challenging the limitations of cities, villages and townships on first amendment grounds and they are winning.
Margaret P. Gilleo owned a home in Ladue, Mo. during the Persian Gulf War in 1990. Opposed to the war, she placed on her front lawn a 24 by 36 inch sign with the words, “Say No to War in the Persian Gulf, Call Congress Now.” That sign disappeared, so Gilleo put up another but it was knocked down. Gilleo reported this to the police when she was advised that such signs were prohibited in her town.
Gilleo, wanting to make her point, legally asked for a variance, which the law permitted, but the city denied her request. Frustrated, Gilleo sued the city, the mayor and members of the city council, alleging Ladue’s sign ordinance violated her First Amendment right of free speech.
A federal district court agreed with Gilleo and issued a restraining order against the city preventing them from enforcing the ordinance. Undeterred, the city changed their sign law which was still a general exclusion of signs except for commercial speech and not-for-profit organizations. Gilleo then added to her protest by placing an 8.5 by 11-inch sign in an upstairs window that said, “For Peace in the Gulf.” Such signs were prohibited by the new ordinance.
The lawsuit continued its way through court and the court held the new law to be unconstitutional. Eventually, the case made its way to the Supreme Court where all nine justices concluded:
“Displaying a sign from one’s own residence often carries a message quite distinct from placing the sign someplace else, or conveying the same text or picture by other means … Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute. … Even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a handheld sign may make the difference between participating and not participating in some public debate.”
Thus it is no surprise that the Supreme Court of Ohio concluded in City of Painesville v. Dworken that limitations on duration are suspect. The court said that, “… 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.”
Signs may be controlled for size, shape, safety, placement, the materials used to construct it, littering issues and numbers. In each case, however, limitations seem to be frowned upon. For instance, courts may allow a limit of ten signs but almost certainly would find that a limit of one sign per yard is unconstitutional.
Homeowner associations and condominium associations are a different matter. When you belong to one of these ownership associations you voluntarily agree to their rules by contract at the time of purchasing your property. Ohio’s Supreme Court has never ruled on which is stronger, the freedom of speech or the right to contract it away. Should someone in Ohio challenge these limitations the measure will be Section 11, Article I of the Ohio Constitution which states that “[e]very citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.”
Most ordinances will not be challenged. It takes a very passionate and thick-skinned person to take on the expense and emotional drain of a lawsuit.
Candidates, or their volunteers, sometimes violate sign ordinances but are rarely punished except with the occasional loss of their illegally placed signs. Most candidates, however, try to respect individual sign ordinances because they don’t want to be seen as problematic for their neighbors and constituents.
So if you’re looking for a sign, just take a walk around the block. There will be plenty of them.
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.
A.J. Wagner is an attorney
with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.