Letter: NYCLU Tells Town Of Essex Its “Signs” Law Violates The First Amendment

August 24, 2004

August 24, 2004

Ronald Jackson,
Town Supervisor
Town of Essex

David Lansing,
Zoning Codes Enforcement Officer
Town of Essex

re Town of Essex Sign Ordinance

Dear Messrs. Jackson and Lansing:

We have learned that the Town of Essex zoning ordinance includes a provision that imposes certain limitations on the posting of political signs on residential property. Specifically, section 4.28-2.7 of the Town of Essex Zoning Law, adopted June 12, 2003, states that temporary signs for “a political campaign […] or undertaking conducted by a political […] organization […] may be erected no more than 30 days prior to the event and shall be removed by the sponsor within 7 days after the close of the event.” Violations of this ordinance result, among other things, in fines of $100 per day. Section 2.6-1-2.

The Town’s ordinance violates the First Amendment to the United States Constitution and Article I, §11 of the New York State Constitution, the New York State counterpart to the First Amendment. A political yard sign is a classic example of the core political speech that is at the heart of the First Amendment’s guarantee of the right to free expression. But, for the vast majority of the year, the Town of Essex has completely, and inappropriately, foreclosed a venerable means of communication that is both unique and important.

The posting of signs displaying political messages is a traditional method of speaking and, indeed, "‘[c]ommunication by signs and posters is virtually pure speech.’"Arlington Cty. Republican Commt. v. Arlington Cty., Virginia, 983 F.2d 587, 593 (4th Cir. 1993), quoting Baldwin v. Redwood, 540 F.2d 1360, 1366 (9th Cir. 1976). And, a law regulating a property owner’s right to erect a yard sign affects both the owner’s and a candidate’s First Amendment rights. See Curry v. Prince George’s Cty., 33 F.Supp.2d 447, 449 fn. 3 (D.Md.1999), citing Craig v. Boren, 429 U.S. 190, 194-197 (1976). Indeed, the First Amendment has "its fullest and most urgent application" to speech uttered during political campaigns. McIntyre v. Ohio Elections Comm. (1995), 514 U.S. 334, 347 (1995), citing Buckley v. Valeo, 424 U.S. 1, 14-15 (1976). As the Supreme Court noted in City of Ladue v. Gilleo, 512 U.S. 43 (1994), signs conveying political messages are "absolutely pivotal speech." Id. at 54. The Court described political signs placed in residential yards or in windows as long having been an "important and distinct medium of expression." Id. at 55. And, as the Court explained,

"[d]isplaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means … Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute … Even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a hand-held sign may make the difference between participating and not participating in some public debate. Furthermore, a person who puts up a sign at her residence often intends to reach neighbors, an audience that could not be reached nearly as well by other means." (emphasis in original.)

Id. at 56-57.

And, while the Supreme Court has not considered the issue, the overwhelming majority of courts that have reviewed sign ordinances imposing durational limits for temporary political signs tied to a specific election date have found them to be unconstitutional. Whitton v. Gladstone, 54 F.3d 1400 (8th Cir. 1995)(ordinance deemed unconstitutional which limited placement or erection of political signs to thirty days prior to the election to which the sign pertains until seven days after the election); Knoeffler v. Mamakating, 87 F.Supp.2d 322, 327 (S.D.N.Y. 2000)(noting that "durational limits on signs have been repeatedly declared unconstitutional"); Dimas v. Warren, 939 F.Supp. 554 (E.D. Mich. 1996)(ordinance deemed unconstitutional which prohibited posting of political yard signs earlier than forty-five days prior to any election, and ordering removal within seven days after); Orazio v. North Hempstead, 426 F.Supp. 1144 (E.D.N.Y. 1977)(holding that no time limit on the display of pre-election political signs is permissible under the First Amendment); Antioch v. Candidates’ Outdoor Graphic Serv., 557 F.Supp. 52 (N.D. Cal. 1977) (ordinance deemed unconstitutional which limited display of political signs to the period sixty days before election); Collier v. Tacoma, 121 Wash.2d 737, 854 P.2d 1046 (1993)(ordinance deemed unconstitutional which limited posting of political signs to the period sixty days prior to election to seven days after, where no time restrictions were imposed on other temporary signs); Curry v. Prince George’s Cty., supra, 33 F.Supp.2d 447 (ban on political campaign signs posted on private residences for all but forty-five days before and ten days after an election deemed unconstitutional). See also Christensen v. Wheaton, 2000 WL 204225 (N.d. Ill. Feb. 26, 2000)(granting preliminary injunction enjoining enforcement of ordinance the effect of which was to prohibit the display of political signs for more than thirty days); Union City Bd. Of Zoning Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393, 467 S.E.2d 875 (1996)(limitation of political signs to six weeks prior to and one week after election deemed unconstitutional); McCormack v. Clinton Twp. (D.N.J.1994), 872 F.Supp. 1320 (D.N.J. 1994)(limitation on political signs to ten days prior to and three days after election deemed unconstitutional). Cf. Waterloo v. Markham (1992), 234 Ill.App.3d 744, 175 Ill.Dec. 862, 600 N.E.2d 1320 (ninety-day time limitation for temporary signs not unconstitutional).

Accordingly, we would appreciate receiving your immediate written assurance that you will cease and desist from further enforcement of this zoning regulation and will change the law to reflect constitutional standards at the Town of Essex’s next planning and zoning meeting.

I will call you on Wednesday, August 25, 2004 to discuss this matter further with you.

Very truly yours,

Beth Haroules

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