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Municipal Research News - Regulation of Political Campaign Signs in the Public Right-of-Way
Regulation of Political Campaign Signs in the Public Right-of-Way
The proliferation of political campaign signs along city streets and county roads heralds the arrival of the fall campaign season. Perhaps not surprisingly, even some signs supporting presidential candidates for the 2008 election have begun appearing. So, questions are often asked at this time of the year as to a city's or county's authority to regulate such signs, particularly in the public right-of-way.
Although this kind of political expression is at the core of the free speech protections of the federal and state constitutions, people may not put up campaign signs wherever they please. They must respect the rights of property owners as well as the rules that local governments apply to the display of such signs. The purpose of this article is to address what restrictions local governments - cities and counties - may constitutionally place upon the display of political campaign signs in the public right-of-way, whether those signs support a candidate for public office or support or oppose an initiative or referendum.
What is a public right-of-way? A lot of misunderstanding exists as to what a right-of-way is. As a general rule, a right-of-way is an easement for public travel and does not include fee title to property underlying the right-of-way.1 Thus, to say that a city owns its streets or a county owns its roads really means, in most cases, that the city or county owns easements for the purpose of public travel, whether vehicular or pedestrian.2 Some local governments, however, actually purchase the fee title to the property underlying the right-of-way, but that is the exception rather than the rule. Usually, the underlying title to the parking strip adjacent to the paved roadway (the area between the sidewalk and the street or, where there are no sidewalks, the unimproved part of the right-of-way) belongs to the abutting property owner. This is the area where most political campaign signs are placed.
The Collier case - pre-election durational restrictions held unconstitutional. In 1993, the state supreme court addressed the issue of a local government's ability to regulate temporary political signs within the public right-of-way, and, specifically, the area of the parking strip.3 In Collier v. City of Tacoma, city workers had removed the campaign signs of a candidate for Congress from residential yards and parking strips in accordance with two Tacoma ordinances that restricted the preelection posting of political signs in such areas to a 60-day period prior to an election. The state supreme court held this restriction to be unconstitutional under both the federal and state free speech protections. The court first determined that the Tacoma ordinances restricted political speech, which is entitled to the "fullest and most urgent" constitutional protection, and that parking strips - the area between the streets and sidewalks - constitute a "traditional public forum" that occupies "a special position in terms of First Amendment protection, [where] the government's ability to restrict expressive activity is very limited."4 A traditional public forum is a place that by long tradition or government fiat has been devoted to assembly and debate and where the government has only a very limited right to restrict political speech. However, even in a public forum, the government may impose reasonable restrictions on the time, place, and manner of protected speech, "provided the restrictions are content neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication."5
The Collier court held that the Tacoma ordinances were impermissibly content-based, because their restrictions did not also apply to similar, temporary "for sale" or "for rent" signs, and because they inevitably favored incumbents over other candidates, such as the "underfunded challenger." The court also held that the aesthetic and traffic justifications proffered by the city for the durational restriction were not sufficiently compelling to outweigh the restrictions imposed on Collier's political speech. The court, however, had no problem with the requirement that campaign signs be removed within a certain period after an election (e.g., seven days), as long as such a requirement is reasonable and applies to all other temporary events, including home sales and residential renting.
May political signs be prohibited entirely within the right-of-way? Although the Collier case made it clear that restrictions on how far in advance of an election campaign signs may be posted are unconstitutional, it did not address some other important issues regarding a government's ability to regulate political campaign signs in the right-of-way. Significant among those issues is whether a city or county may prohibit all campaign signs within a public right-of-way.
There is no case law in Washington that addresses this issue. It is MRSC's position that the courts would be more likely to uphold a prohibition of political campaign signs in the right-of-way if (1) the prohibition does not include the parking strip abutting private property, which the Collier case described as a traditional public forum; and (2) the prohibition applies to all other temporary signs, such as real estate and garage sale signs. While Collier and other cases have also deemed the "streets" to be a traditional public forum, this does not mean that they are such for the placement of signs. Clearly, traffic safety becomes an important issue when signs are in areas of the right-of-way other than the parking strip.6
May the size of political signs in the right-of-way be restricted? Yes, as long as the size restrictions are reasonable and also apply to other temporary signs in the right-of-way, including within parking strips. Traffic safety and aesthetic considerations provide a sufficiently compelling justification to limit sign size in the right-of-way.
May political campaign signs be placed in a parking strip abutting private property without the abutting property owner's permission? Although we are not aware of any case law on this issue, it is MRSC's opinion that the permission of the abutting property owner or resident is necessary before a political campaign sign may be placed in the parking strip. Private property rights should trump free speech rights in this circumstance. Nevertheless, it is advisable for a local government to indicate the need for permission in its sign ordinance, so that citizens have notice of the rules.
If the city or county owns the fee title to the right-of-way, including the parking strip, then it is best to require city or county permission for placement of political campaign signs in the parking strip. We recommend that sign policies indicate that permission will not be given if the abutting property owner or resident objects.
May a city or county restrict the number of political signs that may be placed in the parking strip? There is no case law authority in Washington State on this issue either,7 but we are skeptical as to the constitutionality of such a restriction. While a limit of, for example, 10 or 12 signs may sound reasonable, what if there are an unusually large number of offices and ballot propositions on the ballot? A limit of one sign per candidate or ballot proposition may also seem reasonable, but what if the parking strip is for a multi-family building? These kinds of issues need to be considered if a city or county is contemplating limits on the number of signs. Traffic safety and aesthetic considerations would be greater with large numbers of signs, but it is difficult to predict whether the courts would consider them sufficiently compelling.
Summary of permissible and impermissible restrictions. In summary, a city or county may not limit how far in advance of an election political signs may be displayed in the right-of-way or elsewhere. Post-election removal requirements may be imposed if they are reasonable (they leave enough time for removal and exempt winning primary candidates until after the general election) and apply to all other types of temporary signs allowed in the right-of-way. Cities and counties should be able to impose reasonable size limitations, as long as those limitations are also imposed on other temporary signs allowed in the right-of-way. The constitutionality of other restrictions on campaign signs in the public right-of-way is less certain. Your legal counsel should be consulted before such restrictions are enacted. MRSC legal consultants are also available for consultation on these issues.
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1See, e.g., Finch v. Mathews, 74 Wn.2d 161, 167-68 (1968) ("Since Burmeister v. Howard, 1 Wash. Terr. 207 (1867), this court has not departed from the rule established in that case, that the fee in a public street or highway remains in the owner of the abutting land, and the public acquires only the right of passage, with powers and privileges necessarily implied in the grant of the easement."); Puget Sound Alumni of Kappa Sigma, Inc., v. Seattle, 70 Wn.2d 222, 226 (1967); Christian v. Purdy, 60 Wn. App. 798, 801 (1991).
2State rights-of-way for state highways are different, however. The state purchases fee title for rights-of-way for its highways.
3Collier v. City of Tacoma, 121 Wn.2d 737 (1993).
4121 Wn.2d at 747.
5Id.
6In City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984), the U.S. Supreme Court upheld the constitutionality of the City of Los Angeles' prohibition on the posting of any signs on public property, which was defined to include:
any sidewalk, crosswalk, curb, curbstone, street lamp post, hydrant, tree, shrub, tree stake or guard, railroad trestle, electric light or power or telephone or telegraph or trolley wire pole, or wire appurtenance thereof or upon any fixture of the fire alarm or police telegraph system or upon any lighting system, public bridge, drinking fountain, life buoy, life preserver, life boat or other life saving equipment, street sign or traffic sign.
466 U.S. at 491, n.1. The Court noted that "The Los Angeles ordinance does not affect any individual's freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited." 466 U.S. at 812. It does not appear, however, that the ordinance in Vincent would prohibit placement of political signs in the ground in a right-of-way and not attached to any such object identified in the above language.
7Courts in a few other jurisdictions have looked at this issue. For example, the Fourth Circuit Court of Appeals invalidated a two-sign restriction on temporary signs (Arlington County Republican Comm. v. Arlington County, 983 F.2d 587 (4th Cir. 1993), and the West Virginia State Supreme Court in 1992 indicated that "the number of [temporary political or candidate signs] signs permitted could be limited, within reason" (Fisher v. City of Charleston - http://www.state.wv.us/wvsca/docs/fall92/21356.htm.
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