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Regulating Non-Commercial Temporary Signs During Election Season


October 15, 2018 by Jill Dvorkin
Category: Sign Control

Regulating Non-Commercial Temporary Signs During Election Season

This blog post originally appeared in 2017 and has since been updated.

"Non-commercial temporary signs"? That’s a mouthful! Why not just say political signs??

Well, after the 2015 U.S. Supreme Court decision, Reed v. Gilbert, thou shalt not regulate signs by content type. So, jurisdictions have found themselves needing to craft non-commercial sign regulations based on a sign’s physical and other non-content-based attributes, such as whether it’s permanent or temporary, rather than categories typically seen in codes, such as whether a sign is political or ideological in nature.

MRSC has already written quite extensively about the Reed decision as well as regulation of political (I mean, "non-commercial temporary" signs) post-Reed. The purpose of this blog post is to provide a brief refresher of how a jurisdiction may regulate these signs, as well as to provide links to some updated codes that regulate temporary signs post-Reed.

Background

Both state and federal courts are highly protective of political speech; therefore, regulations affecting political signs will be subject to the strictest scrutiny. Following Reed, this means that other non-commercial signs (formerly categorized as ideological, special event, etc.) that are temporary in nature should be allowed to be placed as liberally as political signs since jurisdictions aren’t supposed to distinguish among these signs by content type.

Pre-Reed case law established some specific limitations on regulating political signs in Washington State, and this remains good law. The Q & A’s posed in this 2012 MRSC Insight blog post set forth the basic parameters of the law, including the following items:

Can a local government place limits on the amount of time before an election that signs can be put up?

Although cities have tried to limit the amount of time before an election that political signs can be placed, the Washington State Supreme Court has held that limiting political signs to 60 days prior to an election is unconstitutional. In Collier v. Tacoma, 121 Wn.2d 737 (1993), the state supreme court ruled that it is not constitutional to limit the time in advance of an election that political signs can be posted in the places where political signs are allowed.

Can a local government require that signs be removed within a certain amount of time after an election?

The Collier court allowed a 10-day, post-election removal requirement. The court recognized that the rights of political expression do not weigh as heavily after an election, and it determined that the local government's interest in aesthetics and traffic safety outweighed any individual rights.

NOTE: after Reed, this post-election durational limit may be impractical. However, the D.C. Circuit upheld a Washington D.C. regulation that imposed time limits on event signs posted on city lampposts. Even though the regulation requires that you read the sign to enforce it, the court held that the regulation was not targeting the “communicative content” of the sign. So, a regulation that limits how long a temporary sign can remain up following an event might withstand scrutiny under Reed. (See Act Now to Defend Racism Coalition v. District of Columbia, 846 F.3d 391 (2016))

Can a local government prohibit political and other signs in the public right-of-way?

Political signs cannot be prohibited in the areas between the street and sidewalk (or in the unpaved section of the right-of-way where there is no sidewalk), commonly referred to as the “parking strip.” However, in our opinion, political signs can be prohibited in the untraveled area of a right-of-way that does not involve parking strips, such as in boulevard medians or in the middle of roundabouts.

May political signs be placed in a parking strip without the consent of the abutting property owner?

No. As a general rule, the public right-of-way, which include parking strips, is only an easement and the underlying property belongs to the abutting property owner. As such, only that property owner or the tenant of the property owner may determine what, if any, political signs are placed in the parking strip.

How Are Washington Jurisdictions Regulating Signs?

We have compiled a number of examples of post-Reed sign code updates on our Sign Control webpage. Jurisdictions have taken different approaches to regulating temporary signs but generally these approaches conform to the content-neutral principles set forth in Reed and allow placement of temporary signs in the right-of-way, with some limitations. Many of these codes address:

  • The number of temporary signs allowed.
  • The distance between signs.
  • The total sign area/size allowed.
  • Where temporary signs may be located within the right-of-way (e.g., outside site-distance triangles; not on medians or within traffic circles; within certain distance of intersections).
  • The duration a sign can stay up (e.g., maximum of 180 days).
  • The materials a sign can be made of.
  • The permit process for locating a sign in the right-of-way (e.g., Gig Harbor requires a free, 30-day permit, available to print online).

Helpful Tips

If your jurisdiction’s code has not yet been updated, staff should avoid enforcing the sign code regulations in a manner that treats temporary signs differently based on content. Aside from that, continue to adhere to the limitations that have been in place for quite some time regarding regulating political signs.

Oh, and don’t forget to vote!

Questions? Comments?

If you have a comment about this blog post, please contact me at jdvorkin@mrsc.org or leave a comment below. If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772.


 

About Jill Dvorkin

Jill joined MRSC as a legal consultant in June 2016 after working for nine years as a civil deputy prosecuting attorney for Skagit County. At Skagit County, Jill advised the planning department on a wide variety of issues including permit processing and appeals, Growth Management Act (GMA) compliance, code enforcement, SEPA, legislative process, and public records. Jill was born and raised in Fargo, ND, then moved to Bellingham to attend college and experience a new part of the country (and mountains!). She earned a B.A. in Environmental Policy and Planning from Western Washington University and graduated with a J.D. from the University of Washington School of Law in 2003.

VIEW ALL POSTS BY Jill Dvorkin

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