SIGN ORDINANCE AND FREE SPEECH: An open letter to the Common Council

Colleagues:

I strongly dislike yard signs. I wish that I never had to use them (but our system of elections makes them necessary). They are ugly and can be divisive.

But, when making public policy, regardless of our personal preferences, our first obligation as elected officials is to do no harm to the constitutional rights of our residents.

On August 10, the Common Council will consider an ordinance that revises our sign code with respect to yard signs. The proposed ordinance says that the owners of a home can display no more than four signs at any time, and no sign at a residence can be larger than 18” x 24”. Personally, I like the changes; however, there are more important principles involved than any of our personal views.

The courts have made it clear that a community cannot prohibit yard signs, limit the content of yard signs or limit the amount of time yard signs can be posted. The courts are clear that those sorts of prohibitions violate people’s First Amendment rights. The Supreme Court has stated that “signs are a form of expression protected by the Free Speech Clause.” A community can prohibit signs from blocking the views of cars and pedestrians or creating other safety hazards. A community can prohibit signs on public property (Mequon does). Although not quite as clear, it appears a community can restrict the size of signs.

It is not clear that the courts will uphold a restriction on the number of signs a person can post. Based on the reasoning of the existing decisions, I do not think a limit of four is permissible (admittedly, the City Attorney disagrees). If the ordinance is adopted, Mequon could be sued, and I think there is a reasonable likelihood that Mequon would lose and be liable for restricting the constitutional rights of its residents.

In November 2020, there were eight offices on the ballot (president, congress, state senate, state assembly, district attorney, county treasurer, county clerk and register of deeds). There could have been more. For example, one nearby community had a referendum question on the ballot, and some years there are other offices. Also, there were many issues in 2020 that had residents very concerned.

Is it right that government tells a very interested resident that he or she cannot post a sign for every candidate and issue that he or she supports?

And what about homes where, for example, a husband supports one group of candidates and a wife supports another? I have seen many instances when a home has signs for both candidates for the same office. Should government impose restrictions that require residents of the same home to wrestle over which candidates’ signs can be posted?

Advocates for the restriction glibly suggest that homeowners can put more than one candidate on each sign; therefore, their rights are not restricted. That would require homemade signs, or residents would have to incur the cost of having decent signs made. That is totally unrealistic. It is not how people do yard signs. The print might become so small as to be illegible. If so, government rules requiring that might also be unconstitutional. Plus, a bunch of homemade signs would likely be even more unsightly.

Most people will not junk up their yards with a dozen yard signs. Some will. I do not believe we have the right to tell them they cannot. We hope they will not, and we hope candidates have enough respect for our community that they will not overdo their signs.

Again, I do not like yard signs. But democracy is not always pretty.

To paraphrase Justice Brandeis, imposing restrictions on speech we do not like is not the solution; instead, the solution is to have fewer restrictions so everyone can express themselves. And as the Supreme Court said, while striking down a residential sign ordinance in 1994:

A special respect for individual liberty in the home has long been part of our culture and our law; that principle has special resonance when the government seeks to constrain a person’s ability to speak there.”

I strongly urge you to consider offering an amendment on August 10 to remove the four-sign limit from the proposed ordinance. I believe the proposed restrictions would violate the oath we each took to “support the constitution of the United States.”

I also am requesting that residents contact you to let you know what they think.

John

One thought on “SIGN ORDINANCE AND FREE SPEECH: An open letter to the Common Council”

  1. I agree with your sentiments. Mequon is already a pretty homogenous place, yard signs are not reason enough to make it even worse. While I don’t post yard signs (and kudos to none of my Sunnycrest neighbors for doing so!) every individual deserves the right to clutter up lawn with junk.

Leave a Reply