Temporary Signs in the Right-of-Way

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Adam Lovelady

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It’s that time of year again. Leaves are falling and campaign signs are rising. Along with the signs come the questions about the laws and limits for regulating campaign signs. This can be a confusing topic because of the ruling from the U.S. Supreme Court in Reed v. Town of Gilbert and because of the overlapping authority between local governments and the North Carolina Department of Transportation (NCDOT).

Legal issues affecting the regulation of campaign signs include:

  • Free speech protections limiting the regulation of sign content;
  • Differences between regulations on private property and regulations on public property; and
  • Differences between regulations on state maintained rights-of-way and municipally maintained rights-of-way.

This blog describes the basic aspects of these legal issues with a focus on regulations in the public right-of-way.

 

Free Speech Issues

The U.S. Supreme court has ruled that regulations of signs that are based on what the signs say (content-based regulations) are subject to strict scrutiny—a standard that requires compelling government justification and will likely be struck down. In contrast, content-neutral regulations of the time, place, and manner of speech are subject to intermediate scrutiny and are more likely to survive judicial review. Regulation of commercial speech also is subject to intermediate judicial scrutiny.

In Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the U.S. Supreme Court made clear that categorizing noncommercial signs by the content of the message is content-based regulation subject to strict scrutiny.  In that case the town’s sign ordinance distinguished between campaign signs, ideological signs, and event-based signs, among other categories. Justice Thomas offered the following example: “If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.” Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015). The Court found those categories to be unconstitutional content-based restrictions that could not survive strict scrutiny. I wrote more about the Reed decision here.

Following the Reed case, sign regulations need to treat noncommercial speech equally. So, if a sign regulation is going to permit temporary campaign signs, then it must equally permit temporary signs stating “Jesus Saves,” “Anarchy Now,” and “Save the Earth.” Many local ordinances had (and still have) content-based distinctions that would not withstand constitutional challenge after Reed.

Content-neutral regulations that distinguish signs based on the characteristics of the sign generally survive judicial review under intermediate scrutiny. So, for example, reasonable regulations of the size or location of signs are generally acceptable. Distinctions among types of sign construction—monument signs, wall signs, temporary signs, and air-blown signs, for example—also are allowed generally. Such restrictions are based on the characteristics of the sign, not the content of the message. To be clear, these content-neutral regulations still must meet intermediate judicial scrutiny: The regulation must further a substantial governmental interest (such as public safety and community aesthetics), that governmental interest must be unrelated to limiting free expression, and the regulation must be no greater than necessary to support the governmental interest.

Even after Reed, commercial messages may still be distinguished from noncommercial messages. To be sure, that distinction formally is a content-based distinction, but courts applying the Reed decision have re-affirmed that regulations of commercial speech remain subject to intermediate scrutiny under the Central Hudson case (447 U.S. 557 (1980)). For application of Central Hudson after Reed, see for example Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192 (9th Cir. 2016) and Geft Outdoor LLC v. Consol. City of Indianapolis & Cty. of Marion, Indiana, 187 F. Supp. 3d 1002 (S.D. Ind. 2016)(appeal dismissed sub nom). As such, a government might permit temporary noncommercial signs (campaign signs and others) but still restrict temporary commercial signs.

In addition to the differences between content-based, content-neutral, and commercial speech regulations, courts have held that regulations may differentiate between signs on private property and signs on public property. As Justice Thomas noted in his opinion for the Court in Reed, “on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.” Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2232(2015) (citing Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 817(1984)). The discussion below first outlines considerations for temporary noncommercial signs on private property and then outlines additional considerations for temporary noncommercial signs on public rights-of-way.

 

Temporary Signs on Private Property

An ordinance or regulation may set reasonable content-neutral limits on noncommercial speech (including political signs) on private property. Such restrictions might include limits on the size, number, and location of temporary noncommercial signs.

Importantly, regulations of temporary noncommercial signs on private property must not be overly restrictive. The U.S. Supreme Court has noted the import of the residential signs because residential signs are inexpensive and convenient, they convey a message with a close connection to the speaker, and there are not adequate substitutes of expression if residents are completely prohibited from posting residential signs. In City of Ladue v. Gilleo, 512 U.S. 43 (1994), the city ordinance prohibited homeowners from displaying signs on their property, with limited exceptions. A resident challenged the ordinance when she was prevented from posting a sign protesting the Gulf War. The Court struck down the city’s ban of almost all residential signs, but allowed that the city can still address residential signs with reasonable regulations.  Similarly in Arlington County Republican Committee v. Arlington County, 983 F.2d 587 (4th Cir. 1993), the Fourth Circuit Court of Appeals ruled that limiting property owners to only two campaign signs was overly restrictive.

Can a local government set a time limit on temporary noncommercial signs on private property? Durational limits that are not overly restrictive likely may be used, but local governments should be wary of the potential legal pitfalls. Even before Reed courts around the country struck down durational limits that were too short (routinely striking down sign codes that limited campaign signs to less than sixty days). This is a reminder that anytime the government is regulating noncommercial speech it must not be overly restrictive—especially as related to residential property and possible political speech.

The Reed decision did not directly address the question of durational limits for noncommercial signs, but did discuss it indirectly. Justice Thomas implies that a regulatory provision related to “whether and when an event is occurring” may be permissible if it permits “citizens to post signs on any topic whatsoever within a set period leading up to an election.” 135 S. Ct. at 2231. Along that line of thinking, a local government could establish a set amount of time (for example, ninety days before an election until ten days after the election) and permit a greater amount of temporary noncommercial signage during that time period.

Note, though, that such preference for campaign season may lack the tailoring necessary to justify a sign regulation. If the additional signage is permitted during campaign season, then what is the justification to prohibit a resident from posting a temporary sign during the Easter season, or the summer solstice, or at the start of the school year? While prior caselaw and Justice Thomas’ language in Reed indicates that time periods tied to campaign season may be permissible, there is some lack of clarity around this issue.

 

Temporary Signs in Public Rights-of-Way

As noted above, courts distinguish between regulations of signs on private property and regulations of signs on public property. This section explores statutory authority and Free Speech considerations for regulations of temporary signs in the public right-of-way in North Carolina.

Rules for NCDOT Rights-of-Way

The State of North Carolina has specific rules for signs in public rights-of-way controlled and maintained by the NC Department of Transportation. General Statute 136-32 outlines a general prohibition on posting signs on public highways and authorizes NCDOT to remove impermissible signs.  The statute then sets forth the rules allowing for “political signs.” Political signs are permitted in the NCDOT right-of-way during the time period from 30 days prior to the first date of “one-stop” early voting until the tenth day after the primary or election day. (Note that the regulation is for public rights-of-way, not private property, so the shorter time period is likely permissible.)

The statute gives specific parameters for placement of qualifying signs:

  • No sign shall be permitted in the right-of-way of a fully controlled access highway.
  • No sign shall be closer than three feet from the edge of the pavement of the road.
  • No sign shall obscure motorist visibility at an intersection.
  • No sign shall be higher than 42 inches above the edge of the pavement of the road.
  • No sign shall be larger than 864 square inches.
  • No sign shall obscure or replace another sign.

Notably, the individual placing the sign must obtain permission of the owner of the property fronting the right-of-way where the sign is erected, although there is no detail about the form or evidence of such permission.

NCDOT is authorized to remove noncompliant signs. It is a Class 3 misdemeanor for an unauthorized individual to steal, deface, vandalize, or unlawfully remove a political sign placed in compliance with the statute.

This NCDOT rule as written is subject to constitutional challenge under the Reed decision. The statute allows “political sign”—defined as “any sign that advocates for political action”—but not other noncommercial signs. This preferential treatment of one category of noncommercial speech is precisely the kind of content-based regulation that the Court struck down in Reed.

Local Rules for Municipal Rights-of-Way   

Under General Statute 160A-296, North Carolina municipalities have broad authority over their public streets, including the power to regulate the use of the streets and the duty to keep the streets free from unnecessary obstructions. This authority includes the power to regulate signs in the right-of-way.

Moreover, the statute about NCDOT authority, 136-32(f), confirms that cities may use their police powers to adopt regulations of signs in the rights-of-way within their jurisdiction and maintained by the city.

A municipality may prohibit temporary signs in the municipal right-of-way, or permit them subject to certain even-handed, content-neutral restrictions. As with other restrictions, this may include limits on size, location, time-frame, and other content-neutral aspects. A municipality may permit noncommercial temporary signs in the right-of-way, but still restrict commercial temporary signs.

Rules for When There Is No Local Ordinance

If a municipality does not adopt an ordinance prohibiting or regulating the placement of signs in the right-of-way, then the NCDOT rules under G.S. 136-32 apply to municipal rights-of-way. That section does not specifically address enforcement, but presumably the municipality would handle enforcement.

There is a common question concerning municipal enforcement of the NCDOT rule: If the NCDOT rule runs afoul of the Reed decision, how should the municipality enforce the rule? Some take the stance that although the state law may be challenged as unconstitutional, it is the applicable rule until a court says otherwise or until the General Assembly chooses to amend the statute. That stance, though, leaves the municipality open to legal challenge—your town might be the one that winds up in court. Alternatively, a municipality could use its enforcement discretion and apply the NCDOT rule to noncommercial speech, not just political campaign signs. In practice, most of the temporary signs in the right-of-way during campaign season will be campaign signs. When enforcing the NCDOT rule, the zoning enforcement officer or city transportation staff could pick up any temporary commercial signs, but leave any temporary noncommercial signs such as signs with religious messages, non-campaign political messages, and other noncommercial messages.

Rules for State Roads in a Municipality

What about NCDOT roads within a municipality?  G.S. 136-32(b) sets forth the provisions allowing placement of “political signs in the right-of-way of the State highway system.” G.S. 136-32(f) makes clear that municipal rules, if adopted, apply to streets “located within the corporate limits of a municipality and maintained by the municipality.” With that phrasing, it appears that NCDOT rules would apply to a state road in a municipality unless the municipality maintains the state road. That said, it may be possible for NCDOT to contract with a municipality to handle enforcement along NCDOT-maintained highways within the municipal boundary. G.S. 136-66.1 outlines the responsibilities for streets inside municipalities, including authority for a municipality to undertake certain maintenance and construction duties related to state roads within the municipality.

 

Summary

Regulation of campaign signs requires some attention to detail. Given the ruling of the U.S. Supreme Court in Reed v. Town of Gilbert, a government regulation must treat noncommercial speech equally. So, if a local or state government wants to permit campaign signs it must equally permit other noncommercial signs. Our courts have recognized the importance of residential signs, so officials must be careful not to over-regulate them. With regard to signs in the public rights-of-way in North Carolina, the applicable rules will depend upon the location of the road, the responsibility for maintaining the road, and whether the municipality has adopted local rules.

 

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