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 redrafted their 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. Below are answers to common questions regarding regulating political signage.

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.

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 Regulation 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, for example, the number of temporary signs allowed and the materials a temporary sign can be made of.

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 non-commercial 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!