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8.e 2 Election campaign signsThis material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. 145 University Ave. West www.lmc.org 7/18/2016 Saint Paul, MN 55103-2044 (651) 281-1200 or (800) 925-1122 © 2016 All Rights Reserved INFORMATION M EMO Election Campaign Signs During each election cycle, cities face questions from candidates and residents about where and when campaign signs can be posted. This memo addresses some of the common concerns about campaign sign regulation by the city, the size and location of signs, and how to deal with illegal signs. I. Signs as speech—commercial or noncommercial U.S. Const. amend. I. Goward v. City of Minneapolis, 456 N.W.2d 460 (Minn. Ct. App. 1990). Brayton v. City of New Brighton, 519 N.W.2d 243 (Minn. App. 1994) cert. denied, 115 S.Ct. 1402, (1995). City of Ladue v. Gilleo, 512 U.S. 43 (1994). LMC information memo, Signs and the First Amendment. Legally, signs represent speech. The First Amendment protects signs as speech and courts review, very closely, any attempts to regulate them. Generally the content displayed on a sign constitutes protected “free speech” that cities must not censor. Cities and municipalities, however, may, within certain bounds, regulate the size and physical characteristics of signs and billboards. Brayton v. City of New Brighton, 519 N.W.2d 243 (Minn. App. 1994) cert. denied, 115 S.Ct. 1402, (1995). Case law distinguishes “noncommercial speech” from “commercial speech”. Although the law protects both types of speech, it treats them differently. One Minnesota case distinguishes noncommercial speech signs from commercial speech signs, defining a “noncommercial opinion sign” as one which “does not advertise products, goods, businesses, or services and which expresses an opinion or other point of view.” Courts view campaign signs as a subset of noncommercial opinion speech and provide significant protection and latitude to those types of signs. RELEVANT LINKS: II. Campaign signs Minn. Stat. § 211B.045. Reed v. Town of Gilbert, 575 U.S. __(2015) Cities may regulate the number, size, and placement of noncommercial signs—including campaign signs—for safety or aesthetic reasons, but must do so carefully. Cities cannot, however, regulate the content of these signs. Courts have found city ordinances that categorize types of signs based on type of information conveyed (such as temporary, political, and ideological) unconstitutional. As a result, as a best practice, cities should work with their city attorney before regulating campaign signs. Note that signs expressing opinions—including campaign signs—may be posted on private property year-round. RELEVANT LINKS: League of Minnesota Cities Information Memo: 7/18/2016 Election Campaign Signs Page 2 A. Election season Minn. Stat. § 211B.045. During election season, “sign anarchy” reigns, temporarily giving a reprieve from local regulations that restrict the size or the number of noncommercial signs. Specifically, the state statute requires cities to allow posting of noncommercial signs of any size and number during election season, defined as starting 46 days before the state general primary and running until 10 days after the state general election. This law does not, however, address location, making it likely that reasonable local regulations on sign location still apply. 1. Cities with an ordinance regulating signs LMC information memo, Calendar of Important Dates. Outside of election season, a city’s local sign ordinance governs campaign signs. However, in election season, specifically during a state general election year (even years), certain sections of these ordinances become ineffective for 56 days. Check the League of Minnesota Cities memo, Calendar of Important Dates, for the applicable dates each year that trigger the 56-day time frame. Again, as stated above, this 56-day period starts 46 days before primaries and runs until 10 days after the general election. During this time, campaign signs may be posted in any size and number; however, the location of those campaign signs likely must still comply with city ordinance placement restrictions. 2. Cities with no ordinance regulating signs MnDOT website: Signs and other objects along highway right of way and MnDOT property. In cities that do not have sign ordinances, cities do not have authority to restrict the size and number of noncommercial signs or campaign signs at any time throughout the year. However, even without a local ordinance, the location of these signs must still comply with certain state regulations. III. State law A. Size and number of signs Minn. Stat. § 211B.045. Advantage Media, L.L.C. v. City of Hopkins, 379 F.Supp.2d 1030 (2005) Other than the law discussed above that allows any size or any number of campaign signs during the 56 days around election season, state law does not regulate the size or number of campaign signs. As a result, cities may, by ordinance and outside of election season, restrict the size and number of noncommercial signs within the city, as long as these restrictions apply evenhandedly and do not vary based on content of sign. RELEVANT LINKS: League of Minnesota Cities Information Memo: 7/18/2016 Election Campaign Signs Page 3 B. Location Location, location, location! Candidates and their supporters want campaign signs noticed, creating competition for certain locations. Where a candidate may post signs can get confusing under the law. Minn. Stat. § 160.2715, subd. 10. MnDOT website: Signs and other objects along highway right of way and MnDOT property. Election season or not, a person can never place signs in a location that violates state law. For example, signs cannot be posted in state highway rights of way since doing so poses hazards for drivers and maintenance crews. Specifically, the law prohibits placement or maintenance of an advertisement within the limits of any highway. It also prohibits painting, printing, placing, or affixing any advertisement or advertising device within those same highway limits. This applies to a sign: Minn. Stat. § 160.2715. Minn. Stat. § 173.15. Minn. Stat. § 173.15. Minn. Stat. § 173.15. Minn. Stat. § 173.15. • In the county or state right of way. • On private land without the consent of the owner or occupant. • On public utility poles. • On trees or shrubs. • As paintings or drawings on rocks or natural features. C. Right of way LMC information memo, Acquisition and Maintenance of City Streets. As stated above, campaign signs may not be posted in the right of way if they pose a safety hazard. Because the sizes of rights of way differ depending upon the street, confusion can arise for candidates on where they can post signs. An easement document or plat generally defines the scope of the right of way, which will include the street itself, as well as an area on either side of the street used to support the use of the street. Additionally, the right of way also includes the area below and above the roadway. So, in sum, typically a city right of way includes the: • Traveled street surface. • Center median or divider. • Shoulder of the street. • Curb and gutter. • Bicycle lane (if any). • Sidewalk and/or ditch alongside the road. • Area above the roadway Since the size, shape, and geography of rights of way var y dramatically from city to city, and cities must enforce regulations of objects in their rights of way (including campaign signs) in a consistent manner, cities should seek guidance from the city attorney to develop clear guidelines applicable to campaign signs and other noncommercial signs. RELEVANT LINKS: League of Minnesota Cities Information Memo: 7/18/2016 Election Campaign Signs Page 4 IV. Voting locations Minn. Stat. § 211B.11. Campaign signs are not allowed within 100 feet of the building where absentee voting takes place during the absentee voting period. Absentee voting starts 46 days prior to an election. Minn. Stat. § 211B.11. Additionally, on Election Day, campaign signs are not allowed within 100 feet of the building that houses a polling place, or anywhere on the public property where the polling place is located. V. Campaign sign removal Even though the election season exemption generally allows the posting of noncommercial signs (other than in voting locations or in locations prohibited by state law, such as in rights of way) “until 10 days following the state general election,” this does not mandate the removal of those signs 10 days after an election. For example, in a city that has an ordinance governing signs, it simply means that the city may again enforce its own ordinance starting 10 days after the election. In a city with no ordinance governing signs, the city cannot require the removal of either campaign signs or other signs, except for those signs that do not comply with state regulations, such as signs in a state highway right of way (which cannot be posted in rights of way regardless of campaign season). VI. Constitutionally valid regulation Reed v. Town of Gilbert, 575 U.S. __(2015). Rock Against Racism, 491 U.S. 781 (1989). Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 813-14 (1984). Brayton v. City of New Brighton, 519 N.W.2d 243 (1994). As stated above, the First Amendment recognizes signs as speech. However, that does not mean cities can never regulate signs. Indeed, cities may restrict signs through content-neutral ordinances that regulate the time, place, and manner of the sign and its posting, as long as doing so furthers a compelling governmental interest and other alternative channels for communicating the information exist. The most commonly cited compelling governmental interests include ensuring traffic safety, reducing clutter, protecting home values, and protecting aesthetics. Courts have invalidated city ordinances that categorize types of signs based on the content or message conveyed (such as temporary, political, and ideological) as unconstitutional and not content-neutral. In determining the content- neutrality of a city’s sign ordinance, courts often review the city’s purpose for the regulation and most often find sign ordinances content-neutral when the city can justify the regulation without reference to the content of the regulated speech. Courts have found arguments of safety and aesthetic as acceptable content-neutral reasons for regulating signs, including restricting size, building materials, lighting, moving parts, and portability. RELEVANT LINKS: League of Minnesota Cities Information Memo: 7/18/2016 Election Campaign Signs Page 5 A. Public property as public forum Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 813-14 (1984). First Amendment protections of speakers’ rights to speech and assembly vary based upon the speakers’ chosen forum, with traditional public forums enjoying the strongest First Amendment protections. Traditionally, public parks, sidewalks, and areas open to political debate and speech qualify as areas of public forums. In these types of public forums, a city may not discriminate against speakers or, in this instance, signs based upon viewpoints; but rather, may adopt content-neutral regulations that restrict time, place, and manner. B. Nonpublic forum Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 813-14 (1984). Not all structures or buildings located on city-owned property fall within the scope of the public forum. The mere fact that a city owns or controls certain property that someone could use as a vehicle for communication—such as lampposts or utility poles on which signs could be posted—does not mean that the Constitution requires permitting such use. The U.S. Supreme Court stated that “public property which is not, by tradition or designation, used as a forum for public communication may be reserved by the government for its intended purposes, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” In fact, the Supreme Court found that a city may properly decide that the aesthetic interest in avoiding visual clutter justifies removal of all signs creating or increasing that clutter. Since access to public property depends on the type and use of the public property, cities should consult their city attorney before answering questions about the use of public property for campaign signs. VII. Common concerns A. Removal of illegal signs United States v. O’Brien, 391 U.S. 367, 377 (1968). The authority responsible for the road where the sign is posted may remove an illegally placed sign. However, the responsible authority must remove signs in a fair and impartial manner. Consequently, cities may remove noncommercial signs posted illegally on city streets, counties may remove illegal signs on county roads, and the Minnesota Department of Transportation may remove illegal signs from state highways. Candidates should not remove illegally posted signs that they do not own. Cities may contact the owner of the sign and have them remove the sign or, in the alternative, designate a city staff member to do so. For most cities, public works or police department staff most often remove illegally placed signs. RELEVANT LINKS: League of Minnesota Cities Information Memo: 7/18/2016 Election Campaign Signs Page 6 B. Retrieval of illegal signs When a city removes an illegal sign, it is best practice to store the sign and notify the owner of the storage location, so he or she may pick up the sign. Many cities choose to temporarily store signs at city hall or a public works garage so the owner can easily retrieve them. VIII. Conclusion Remember that landowners may post signs expressing opinions—including campaign signs—on private property year-round. However, cities still may regulate these signs to some extent, even when on private property, as long as the city does so with constitutionally valid city ordinances that do not regulate content, but may address the number, size, and placement of the signs for safety and aesthetic reasons. Consult the city attorney to ensure carefully crafted regulations of such noncommercial signs. While normally, a city can impose reasonable size, number, and location restrictions on noncommercial signs, during state general election years, these local ordinances are temporarily preempted by a state law which allows posting of noncommercial signs of any size or number during election season. The state law provides candidates and their supporters more flexibility in posting signs in support of their election bid. Specifically, the statute allows the posting of noncommercial signs of any size and number from 46 days before the state primary election to 10 days after the state general election, irrespective of the city’s sign ordinance regulation. The location of campaign signs may still be subject to both state law and city regulation for safety reasons. Keep in mind, for those cities that do not have an ordinance regulating signs, anyone can post campaign signs in any size and number throughout the year (not just during election season); however, the location must still comply with state law.