Regulating Signs During Election Season

Election season is upon us, and with that comes the season of political/campaign signs — signs in yards, signs along freeways, signs in boulevards, and signs almost everywhere you look. This is also a time of year when MRSC is asked a lot of questions about these signs, including whether and how jurisdictions may regulate their placement.

This blog will touch on some frequently asked questions, including how different jurisdictions are regulating political signs after the significant 2015 U.S. Supreme Court decision, Reed v. Town of Gilbert.

Background

Both our state and federal constitutions are highly protective of political speech, and regulations and enforcement actions affecting political signs are subject to the strictest scrutiny. After the decision in Reed, however, political signs cannot be “called out” or regulated differently than other non-commercial temporary signs.

In Reed, the U.S. Supreme Court held that a town sign code that treats various categories of non-commercial signs differently based on the information they convey (e.g., directional, political, ideological) violates the First Amendment. Instead, jurisdictions must take a content-neutral approach to sign regulation and base these regulations on physical and other non-content-based attributes such as material, number of signs, dimensions, condition of signs, and location. After Reed, a standard political sign staked into a yard would now typically fall within the regulatory category of temporary or non-commercial temporary signs.

In Washington State, the Reed decision must be harmonized with state law limiting certain restrictions on placement of political signs. In Collier v. Tacoma (1993), the Washington State Supreme Court struck down as unconstitutional strict time and place limitations the city had placed on political signs, specifically related to durational limits on political signs in areas considered a traditional public forum (see more on these Collier limits in the FAQs below). Post-Reed sign regulations should therefore allow all non-commercial temporary signs in a manner consistent with the Collier ruling.

Frequently Asked Questions

Below are a few questions that often come up around election season.

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

Per the Collier court, 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” or “planting strip,” as these areas are considered a traditional public forum.

However, political (and other temporary signs) signs may be prohibited in many portions of the right-of-way including medians, traffic circles, the roadway itself, sidewalks, and areas that would cause safety concerns.

Note that local governments generally prohibit temporary (including political) signs in parking strips adjacent to public property. RCW 42.17A.555 prohibits the use of public facilities to support or oppose a candidate or ballot measure, so placement of temporary political signs within parking strips on public property could implicate this provision.

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

No. As a general rule, the public right-of-way — which includes parking strips — is only an easement and the underlying property belongs to the abutting property owner. As such, only the property owner or the tenant of the property owner may determine which, if any, political signs are placed in the parking strip. For this reason, local sign codes typically address owner consent (see our linked webpage below for examples).

Can a local government limit the 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 Collier court held that an ordinance limiting political signs within the parking/planting strip area to 60 days prior to an election is unconstitutional. It is not clear whether a longer pre-election placement restriction, such as 90 or 180 days, would survive judicial review; however, Collier emphasized the need to demonstrate adequate justification for such a restriction.

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

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

After Reed, there was concern that a post-election durational limit on signs may be impractical to enforce given the difficulty in tracking when a sign was placed, primarily because of the need to read a sign in order to regulate it. However, it appears to still be legal.

The D.C. Circuit Court of Appeals upheld a Washington D.C. regulation that imposed time limits on event signs posted on city lampposts. Even though the regulation requires the sign be read first to determine if it can be removed, the court held that the regulation was not targeting the “communicative content” of the sign. (See the 2017 ruling in Act Now to Stop War and End Racism Coalition v. District of Columbia).

Likewise, the U.S. Supreme Court upheld a regulation that treated on-premises and off-premises signs differently post Reed, even though an individual must first read a sign to determine whether it is on or off premises. For more information see the City of Austin v. Reagan National Advertising (2022) and my 2022 blog about this court case.

There are examples of local post-Reed sign regulations that place time limits on temporary signs as related to an election event. For example, Enumclaw’s Municipal Code Sec. 19.10.210 sets a general 60-day limit on temporary signs, except those in certain portions of the public right-of-way deemed a traditional public forum (i.e., the parking/planting strip). In those locations, temporary signs may be placed for more than 60 days but must be removed within 45 days after each year’s November general election.

How Are Washington Jurisdictions Regulating Political Signs?

MRSC’s Sign Regulation page includes examples of regulatory approaches taken by local jurisdictions post Reed. The webpage includes several code examples of regulation of temporary signs and temporary signs within rights-of-way and on public property.

These sections highlight some of the key and interesting features of different regulatory approaches that try to balance various community interests while remaining consistent with state and federal laws.