Monday, September 24, 2018

The importance of the 1st amendment

In summary - the Planning Commission originally recommended a sign ordinance that would allow total aggregate noncommerical signage per parcel up to thirty (30) square feet.  Councilmember Shuey, upon hearing that wanted to reduce that amount to just three (3) square feet, rejecting the warning from the City Attorney that this was too restrictive, and acknowledging the legal risk.  Councilmember Shuey went so far as to say his intent was to restrict political speech.

The matter was sent back to the Planning Commission, and without any discussion, Carl Wolfe voted in favor of the more restrictive three square feet political speech limitation, which the Councilmember Shuey voted for - to restrict political speech.

See excerpts of Council Meeting minutes that demonstrate all of the above in the first half of this post here.


Just a warning - this post will delve into aspects of the law, court cases, and standards of legal analysis.  While I'm an accountant, I also love the law as a super nerdy hobby.

In May of 2017, the City Council voted to adopt a new restrictive sign ordinance.  The video of the discussion is here, starting at the 32:30 mark.  The discussion of this issue started poorly, and got worse as it went on.

The first mistake was believing that the only guideline that the City must follow was that restrictions must be content neutral to comply with a recent Supreme Court ruling in Reed v. Town of Gilbert.  While that case was about content based restrictions on speech, our City Council took the wrong lessons from that case.  To understand this, it's important to know how speech restrictions are evaluated.  As an enumerated constitutional right, the first amendment offers broad protections over many aspects of speech.  Over the years, the courts have crafted various guidelines that must be followed whenever speech restrictions are implicated.  Different fact patterns in different cases have lead to a complex weave of protections.  Political speech is one of the most protected aspects, whereas commercial speech gets less.  Some speech is not protected at all, things like slander, fighting words, incitement to violence, etc.

When the court reviews speech restrictions, they have essentially two standards to utilize.  If the speech restriction is content based, then the court will use strict scrutiny.  Strict scrutiny has three prongs that must be satisfied to pass:

  1. There must be a compelling government interest - like national security or matters preserving the life of a large number of people.
  2. The law must be narrowly tailored - it can't be overly broad or impact things not related to the compelling government interest.
  3. The law must be the least restrictive means to achieve the ends sought - this prong usually results in laws being overturned because there are often other means to achieve the same ends.
So in the case that the Clayton City Council was responding to in Reed, that had to do with a content based restriction and therefore strict scrutiny was applied and the law was overturned.

The mistake that the Council made was that they believed an ordinance being content neutral absolved them of the other requirements that are imposed when restricting speech, even in a content neutral manner.  Yes the Council has the ability to regulate the time, place, and manner of speech as long as those are content neutral.  But that isn't the only requirement.  The ability to regulate time, place, and manner of speech even in a content neutral way, are subject to intermediate scrutiny, less restrictive than strict scrutiny, but still difficult to pass.  Intermediate scrutiny has five prongs that must be satisfied to pass when analyzing speech restrictions:
  1. Is restriction within the constitutional power of government?
  2. Does restriction further important or substantial governmental interest?
  3. Is the governmental interest unrelated to the suppression of free expression?
  4. Is the restriction narrowly tailored – no greater than necessary?
  5. Does the restriction leaves open ample opportunities of communication?
These tests were established in 1994, in the Supreme Court case, City of Ladue v. Gilleo.

Here are a couple excerpts from that case:
Although Ladue has a concededly valid interest in minimizing visual clutter, it has almost completely foreclosed an important and distinct medium of expression to political, religious, or personal messages. Prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, but such measures can suppress too much speech by eliminating a common means of speaking.
Displaying a sign from one's own residence carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means, for it provides information about the speaker's identity, an important component of many attempts to persuade.
A special respect for individual liberty in the home has long been part of this Nation's culture and law and has a special resonance when the government seeks to constrain a person's ability to speak there
Given the City of Clayton sign ordinance limits total aggregate signage per parcel to three square feet, it forecloses the ability of individuals to engage in political speech expressing support for candidates for office. And since every two years there will be at least two or three City Council seats up for election, not to mention offices for county, state, and federal office, the current limit is incredibly restrictive. There is no way it passes the #4 and #5 prong of the intermediate scrutiny test, and possibly fails others as well.

And the city staff knew that.  They cautioned the Council that the three square feet restriction was overly broad, and that courts have upheld much larger total aggregate bans.  But in spite of that, the Council elected to pass the overly restrictive ordinance.  Councilmember Shuey even acknowledged the legal risk, however he dismissed it then as remote as he dismisses it now.  In the Council's discussion, they specifically identify political speech as the thing they are trying to limit.  That belies any fig leave of content neutrality.