Regulating Political Signs in Election Season: Sign, Sign, Everywhere A Sign…
September 26, 2016
Category: Elections , Sign Control
Do this, don’t do that, can’t you read the sign? Well, pretty much “no,” not when you’re regulating signs. According to the U.S. Supreme Court in Reed v. Town of Gilbert, local governments may no longer regulate a sign simply because, for example, it’s a campaign sign. Instead, under Reed, a sign regulation is presumptively unconstitutional if an agency has to read the sign to determine how it’s regulated. For a general overview of Reed, see our US Supreme Court Issues Significant Sign Code Decision and The Importance of Bringing Your Sign Code Up-To-Date blog posts.
Today’s blog post will consider how Reed may affect the regulation of political and other types of temporary signs going forward.
So Where Does the Reed Decision Leave Us Now That It’s Election Season?
Reed presents a significant problem for local governments because most, if not all, sign codes adopted before that decision regulate categories of signs based on content, such as a category for political or real estate signs. Even though the Reed decision was issued over a year ago, local governments are still struggling with how to revise their sign codes to comply with its holding.
Even if your jurisdiction has not yet revised its sign code to comply with Reed, it may not need to change its approach to regulating campaign signs too much this election season if current regulations adhere to the Washington Supreme Court’s long-established rules protecting political speech. These existing sign code provisions are likely quite permissive, allowing political signs liberally. Therefore, as a practical matter, it seems unlikely that a dispute would arise related to regulating political signs, except, perhaps, in the context of enforcing any post-election time limits for political signs (see discussion below). A jurisdiction should also be cautious against enforcement of potentially more restrictive regulations that apply to other types of non-commercial temporary signs.
What Would a Reed-Compliant Regulation Look Like for Political Signs?
To comply with Reed, local jurisdictions should eliminate the category of political signs in their sign codes (along with other content-based categories). Instead, a jurisdiction will have to craft rules for these signs independent of content—likely based on a category such as “temporary signs.”
At MRSC, we think this means that all non-commercial temporary signs may need to be allowed in the same manner as political signs, under the umbrella of temporary signs or another content-neutral category. (Note: Most courts looking at sign codes post-Reed have not extended it to commercial signs. See this MRSC blog post for more discussion.)
Defining “temporary” without reference to content could be tricky. Rather than looking to the message of the sign to determine if it’s temporary, the category should be defined based on such things as the materials used and how the sign is erected. This poses problems for placing any post-event time limits on temporary signs unless the limitation can be articulated in a content-neutral manner.
What Has the Washington Supreme Court Said About Political Signs?
Our state Supreme Court has long interpreted the Washington State Constitution as being highly protective of political speech and, prior to Reed, articulated how jurisdictions can and cannot constitutionally regulate political signs. This MRSC blog post provides helpful guidance. In summary:
- Pre-election time restrictions on posting political signs are unconstitutional (e.g., a regulation limiting placement of political signs to within 60 days of an election).
- A reasonable post-election time period for removal had previously been deemed constitutional. (Note: After Reed, regulations imposing post-election time limits on political signs would be considered content-based, unconstitutional, and should not be enforced.)
- Political signs may not be prohibited in the parking strip portion of the right-of-way (that area between the curb and the sidewalk), but probably can be excluded in the median, traffic circles, and other portions of the right of way, provided the prohibition applies to all signs.
- Political signs within the parking strip portion of the right-of-way generally require the consent of the abutting property owner.
Whatever content-neutral type of sign category political signs are placed in to comply with Reed should include regulations that are at least as permissive as the principles outlined above.
Reed continues to puzzle regulators and scholars alike. Over a year has passed since the Reed decision, and we know of no jurisdiction in Washington that has adopted a revised sign code in response to Reed, although a few jurisdictions have or are close to issuing public drafts.
However, in the context of political signs, not much will likely change. The clutter of political signs will continue to be as much a sign of the season as football and falling leaves. Although the signs may end up staying up a while longer and in the company of other non-commercial temporary signs.
Keep an eye on our website for legal updates and sign code examples. Also, talk to your agency attorney about how your jurisdiction wants to tackle this complicated issue. Of course, each jurisdiction will have to conduct its own risk analysis and decide how strictly to interpret the Reed principles.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.