Regulating Signs During Election Season

Election season is upon us, and with that comes the season of political signs — signs in yards, signs along freeways, signs in boulevards, and signs most 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 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 2015 decision in Reed v. Town of Gilbert, however, political signs cannot be “called out” or regulated differently than other non-commercial temporary signs.

In Reed, the court held that a town sign code that treats various categories of signs differently based on the information they convey violates the First Amendment. Instead, jurisdictions must take a content-neutral approach to sign regulation and base this regulation on physical and other non-content-based attributes, such as material, number of signs, dimensions, and location. After Reed, a standard political sign staked into a yard would now typically fall within the category of temporary or non-commercial temporary signs.

In Washington State, this poses a bit of a conundrum because the Reed decision must be harmonized with state law limiting certain restrictions on placement of political signs. In Collier v. Tacoma, 121 Wn.2d 737 (1993), the Washington State Supreme Court struck down as unconstitutional strict time and place limitations the city had placed on political signs (see more on these Collier limits in the FAQs below), resulting in fairly permissive political sign regulation. Post-Reed sign regulations should therefore allow all non-commercial temporary signs as liberally as political signs.

Frequently Asked Questions

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

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 an ordinance limiting political signs to 60 days prior to an election is unconstitutional (see Collier v. Tacoma). It’s 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 removal requirement. The court recognized that the rights of political expression do not weigh as heavily after an election, and it determined that a local government's interest in aesthetics and traffic safety outweighed any individual rights.

Note: after Reed, this post-election durational limit may be impractical to enforce given the difficulty in tracking when a sign was placed: 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 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 the 2016 ruling in Act Now to Stop War and End Racism Coalition v. District of Columbia, 846 F.3d 391). 

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. 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. 

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

Per the Collier court, political signs (and now other non-commercial temporary 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. They can also be prohibited in the traveled portion of the right-of-way.

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 Political Signs?

MRSC has updated its Sign Regulation page with several examples of regulatory approaches taken by local jurisdictions post-Reed. The webpage includes several code examples of Regulation of Temporary Signs (Including Political 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.

Helpful Tips

If your jurisdiction’s code has not yet been updated, staff should avoid enforcing the sign code regulations in a manner that is inconsistent with the principles written about above.

Oh, and don’t forget to vote!