Nigel Avilez
Island Forum
In cities all over, excessive use of campaign signs, whether real or perceived, will inevitably trigger strong and sustained public reaction. Mercer Island campaigning is no different, in the past weeks triggering editorial comment, letter(s) to editor, and memorably, an ambitious call for an outright ban on campaign signs in all public places.
While the banning idea is altogether infeasible since municipal action specially punishing political speech will be struck down as unconstitutional, it does raise the question as to what Mercer Island can reasonably do to respond to sign-inspired complaints. For example, can it narrow the pre-election window within which signs can be posted; limit the aggregate number of signs allowed; require instantaneous post-election clean-up, etc.?
The short answer is that Mercer Island, and indeed many of the municipalities in the region, have restricted political signs about as much they’re safely able (i.e. to remain in compliance with WA Supreme Court case Collier v. Tacoma and other decisions). The sign codes avoid “start dates” that would, for example, ban posting of signs 60 days before an election. These have been struck down by courts as not reasonably and adequately providing for exercise of First Amendment rights. One court stated: “…[P]olitics is important business and it is difficult to see what governmental interest is served by placing time limits on the public’s opportunity to be informed about political candidates who are seeking public office or organizations which support them.” Courts generally hold this position, rejecting arguments that maintaining a clean, litter-free community is sufficiently compelling to justify disparate treatment of political speech.
Similarly, the sign codes don’t limit the aggregate number of posters allowed on behalf of a single candidate or issue. Such limitations have been held to impermissibly restrict the quantity of speech at the core of the electoral process. Where the sign codes choose to place restrictions on the sizes of political signs, they place similar restrictions on temporary signs, consistent with bedrock First Amendment and Equal Protection principles disfavoring specially restrictive treatment of political speech.
Incidentally, while Mercer Island’s sign code is likely constitutional, the city publishes on its Web site “Political Campaign Signs Guidelines” supplementing/applying the code. While these guidelines may never be challenged, they do tread uncertain ground in imposing additional limitations on campaign signs - limits that are not similarly imposed on temporary signs advertising commercial, charitable and civic events. For example the guidelines - unique among nearby cities - restrict political campaign signs to 40 inches in height, while other temporary signs are allowed 60 inches. Next, the city “asks” that signs be removed within 48 hours after election. Should the city choose to enforce, this may also be problematic. Cases indicate that while it is reasonable to require that signs be removed after the election, the timing must be reasonable. Forty-eight hours may not be reasonable, especially considering that other municipalities allow 7-10 days for removal. Finally, the city apparently reserves for itself authority to remove noncompliant signs without notice to candidates. The cases indicate that summary removal of political signs - particularly during the period leading up to elections - may be unconstitutional. While the city certainly has removal authority, some form of notice to candidate might be required. Notice is not addressed in the guidelines nor in the sign ordinance.
So as unpopular as campaign signs may be, as is the case with other quintessential free speech activities, they’re not easy targets for regulation, and a city must tread carefully when it proposes to do so. So what then is the solution to perceived sign excesses? It certainly isn’t to ban political signs, and it may not even be in pursuing uncertain regulation. Perhaps it lies in the First Amendment itself, guaranteeing all citizens the right to speak and write freely on all subjects. One letter writer did exactly this last week in an open letter to council candidate Mike Cero: “I understand you can do this under the Freedom of Speech statute [referring to what writer believes is excessive posting] - but that does not mean that you should.” The comment pointedly registers opposition to Mr. Cero’s exercise of his rights, and if enough people feel that way, then maybe that message - without city intervention - gets across.
Nigel Avilez is a Mercer Island resident and a media and intellectual property attorney at Davis Wright Tremaine LLP. He can be reached at nigelavilez@dwt.com.
