Restriction on Signs on Residential Property Violates First Amendment

The restriction was unconstitutionally content-based, the Eighth Circuit held, because it has an exception for flags "containing distinctive colors, patterns or symbols used as a symbol of a government or institution."

|The Volokh Conspiracy |

So the Eighth Circuit held yesterday—correctly, I think—in Willson v. City of Bel-Nor:

[The ordinance] is content-based because whether a fabric is a sign or a flag—and whether it is prohibited by the Ordinance—depends on the "the topic discussed or the idea or message expressed."

And the court also concluded that, even setting aside the content-based exception, the ordinance would likely be unconstitutional even under the more relaxed scrutiny applied to content-neutral restrictions:

The Ordinance's expansive definition of a sign, combined with its strict sign restrictions, applies to a substantial amount of expressive conduct.  Willson offers examples of expressive conduct that are prohibited by the Ordinance:

– "tacking up a 'Welcome Home' banner on the garage" ("No sign shall be affixed to any … garage … ; [t]he following … types of signs are prohibited … any material that flutters");

– "sticking an ADT Security window cling to the front window" ("[n]o sign shall be displayed from the interior of any window");

– "displaying Christmas lights" (Ordinance 983 prohibits any "object … . used
to attract attention to an … event … by any means, including … colors," and
"[i]llumination in any manner is prohibited");

– tying a "Happy Birthday" balloon to a front door on the day of a birthday party ("The following materials … are prohibited … [t]he use of balloons")….

Bel-Nor's interests in traffic safety and aesthetic do not justify such a broad restriction of residents' constitutionally-protected conduct. Ordinance 983 is overbroad and facially invalid because "the impermissible applications of the law are substantial when judged in relation to the statute's plainly legitimate sweep." …

Lastly, Ordinance 983's severe restrictions do not "leave open ample alternative channels for communication of the information." "While the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate."

"[R]esidential signs have long been an important and distinct medium of expression." …  Due to the special significance of the right to speak from one's own home, severe restrictions of this right do not afford adequate alternatives.

Thanks to Gene Summerlin for the pointer.

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  1. What sort of dystopian image is Bel-Nor going for here? None of these given restrictions would hurt the city image, and should quite do the opposite in my opinion.

    1. It’s all part of the drive to increase the number of wonderful, Stepford communities in these United States of Generica.

  2. Progress. Still waiting for courts to finally say “No, government has no legitimate interest in regulating the ‘aesthetics’ of private property” though.

    1. Even under straight-up hardcore libertarianism, I’m not so sure. The way the “aesthetics” of one building affect the property values of the buildings in the vicinity is about as textbook an example of externalities as you’re going to get.

      1. Except that it isn’t, because the property values of person A are not the responsibility of person B in any way. It is not, even slightly, the function of government to make money for interested private entities. Such indirect analysis would allow for near-infinite government power, which is plainly non-libertarian.

        1. By that logic, it is also not the function of government to spare me the expense and hassle of having to go to the hospital to have my nose fixed because you punched it. Your freedom to move your hand stops at my nose and your freedom to do on/with your property what you like stops where it affects the property of others. If you don’t like that, buy a million acres in Montana and paint your house in whatever colour your like.

          1. Boorish, anti-social people have rights, too.

            But usually not as many as they believe they have or would like to have.

            1. Yes, you do.

          2. The city can just leave the dirty work to the area HOA’s.

            The end result is the same: I have known the inexorable sadness of houses, neat on their lots, dolor of replication and hedge,
            all the misery of precise, six-inch lawns, all sign-free, desolation along immaculate public drives. (with apologies to Theodore Roethke)

            https://www.poemhunter.com/poem/dolor/

            1. It’s a real shame that this law does not prohibit similar regulation by the managers or HOAs of apartment and condo complexes and mobile home parks. They are just as much government as city halls are.

            2. Bel-Nor is for all practical purposes, a HOA (home owner’s association) compact.
              Population of 1500, a third of the land area is a private golf course, incorporation as a city in 2015 (upgraded from status as a village), total funding via speed trap on major county thoroughfare that runs along southern border.
              It is just one of 80 some odd municipalities within St. Louis County, most of which exist for the purpose of functioning as HOAs.

          3. “your freedom to do on/with your property what you like stops where it affects the property of others.”

            This claim is overly broad. No one has an obligation to maximize their neighbors’ property value. If I own a house in the middle of an open space, but not the surrounding property, I don’t have a right to prevent others from building on their property. My house would be more valuable if my neighbors all bulldozed their houses and combined their property into one park, but of course I have no right to ask them to do so.

        2. See, like I inferred, Valkanis, you are an ideologue.

      2. “The way the “aesthetics” of one building affect the property values of the buildings in the vicinity is about as textbook an example of externalities as you’re going to get.”

        Question – are you entitled to any value that I, myself, create? I can’t think why, but that’s what this argument presumes. It presumes that, if we’re neighbors, any rise in value of your property that is attributable to its proximity to my property is something you are entitled to, and entitled to have me keep contributing to. If your house is slightly more valuable because of how nicely I keep up my house, if anything that’s something you should owe ME for, but since that’s really not practical, at the very least you should not be able to compel me to keep creating or maintaining value for you.

    2. And neither does any HOA purporting to act in its members’ interest.

  3. Problem is, EV’s notion of “content-based” is so broad it basically abolishes sign ordinances altogether. Municipalities throughout the land prefer to exclude some signs by category in residential areas—for instance, commercial advertising signs are commonly excluded. EV’s reasoning would seem to make the determination that a sign is commercial advertising a “content-based” distinction. That may even be the nub of his argument—that folks shouldn’t be able to discriminate against commercial advertising in residential neighborhoods. Very ideological, very free market, but likely very unpopular—or soon to become unpopular, once the signage arms race really gets going.

    I suggest the law needs to narrow the content-based discrimination category, to make it operate against only distinctions among differing content within a specific category—in the political speech category, no laws against “vote for” signs if “vote against” signs are permitted. That would leave regulators free to match ordinances to local preferences, by excluding some categories, but not others.

    Perhaps it would be wise to tweak that general principle, by always including a broad exception for speech on core first amendment issues—no outlawing the political speech category. But that might run into its own set of problems in making necessary distinctions. In which case, the right response could be to answer on the basis of time, place, and manner distinctions. It is long established that not every place is a public forum for all manner of speech. In a residential neighborhood, tell the my-property-my-speech-rights types that they can go into their front yard and say anything they please, anytime they please, but not with amplification, and not on a sign.

    Or consider another possibility—one perhaps horrifying to ideologues—that maybe the private property sign problem has already been optimized, by allowing somewhat arbitrary policies, but governed and amended under local political control. In most places, that seems to be the long-standing status quo. Maybe it can’t be improved upon.

    1. ” is so broad it basically abolishes sign ordinances altogether. ”
      Not true, they could regulate size/placement without regard to content.

    2. once the signage arms race really gets going

      That doesn’t make any sense. You can either allow signs or not. And if you allow them, you can control where and size. So what would cause this “arms race”?

    3. I suggest the law needs to narrow the content-based discrimination category, to make it operate against only distinctions among differing content within a specific category—in the political speech category, no laws against “vote for” signs if “vote against” signs are permitted
      Umm, that is classic viewpoint discrimination; Not content based.

      And being content-based merely means it is subject to strict scrutiny rather than intermediate. And in your example of commercial signs that would likely be governed by the commercial speech exception which is a lower level of scrutiny.

      In a residential neighborhood, tell the my-property-my-speech-rights types that they can go into their front yard and say anything they please, anytime they please, but not with amplification, and not on a sign.
      That is content-neutral and is governed by a lower level of scrutiny. Read the opinion posted, it explains how to review that and why that, too, is likely unconstitutional.

      by allowing somewhat arbitrary policies, but governed and amended under local political control. In most places, that seems to be the long-standing status quo. Maybe it can’t be improved upon.
      The First Amendment is not governed by elections. Nor is it about what is optimal. It is what it says. If you think it goes too far and that we’d be better if it didn’t then you pass an amendment.

    4. Problem is, EV’s notion of “content-based” is so broad it basically abolishes sign ordinances altogether.

      It’s not EV’s notion; it’s the Supreme Court’s. And it doesn’t. It just abolishes ordinances based on (duh) the content of the signs. They can still regulate other aspects of the signs, such as location or size.

      I suggest the law needs to narrow the content-based discrimination category, to make it operate against only distinctions among differing content within a specific category—in the political speech category, no laws against “vote for” signs if “vote against” signs are permitted.

      That’s viewpoint-based, not content-based.

      That would leave regulators free to match ordinances to local preferences, by excluding some categories, but not others.

      The entire point of the first amendment is to take these questions away from local preferences.

      1. Can local authorities regulate the signs as land uses, not as speech? Thus, within residential zoning, signs deemed residential land uses, “Here is the birthday party!” are permitted, and signs deemed commercial land uses, “Al’s barber shop around the corner,” are banned.

        1. Whether something regulates speech is about it’s effect, not whatever nonsense the government calls it.

        2. “Can local authorities regulate the signs as land uses, not as speech?”

          Sure, as long as those regulations aren’t in any way dependent on the speech content of the signs.

      2. The entire point of the first amendment is to take these questions away from local preferences.

        I’m pretty sure the 1A is broader than that, and more tightly focused on speech than it is on land use. If you want to say that speech freedom requires an end to land use regulation, because that can adversely affect speech freedom, then I think you have found a principle which can get rid of all government altogether. It all affects speech freedom. Maybe that is the point you are working toward, but most folks are going think it an absurdity.

    5. “Problem is, EV’s notion of “content-based” is so broad it basically abolishes sign ordinances altogether”

      I personally would hope so.

  4. a broad exception for speech on core first amendment issues

    Well, there’s your Failure To Understand The First Amendment, right there.

    1. KHP54, I’m taking a conservative position, one with which EV might not agree. I know the arguments, but I think tradition, practice, and familiarity might usefully be considered in the balance. The position is that if local authorities have power to ban signs altogether, then permitting some kinds of signs (without regulating content within kinds) while continuing to ban other kinds, is an expansion of liberty, not a constriction.

      I take it you prefer an ideological, absolutist approach. Do you have any reason for that, except insistence on keeping your ideology consistent?

      1. You don’t get to redefine ‘conservative’ at your whim, either.

        No, the point is if government gets to define what kind of speech the First Amendment applies to, and what kinds it doesn’t… then it’s not really any kind of restriction on government power, despite the fact that this is exactly what it was supposed to be!

        Scalawag!

        1. KHP54, did you know that there is not just one definition of conservatism? Decades ago, before movement conservatism, conservatism was a genus, with a variety of species—I included a few keywords to suggest the Burkean species.

          But maybe you are a modern movement conservative.

      2. Requiring the government to following well defined rules in all cases doesn’t make you an “ideologue.” It is called rational governance, and is the basis of the prosperity of modern society. History has shown unequivocally that your position is wrong, and that arbitrary power that “balances interests” is wrong. So local authorities don’t have the power to ban signs altogether. The point of the rule-of-law is that it doesn’t matter what kind of “position” you are taking; in fact, by doing so, you are revealing yourself to be an ideologue.

      3. Are you honestly arguing against consistent application of legal texts and principles?

        1. I am arguing in favor of experience-based politics, and against rationalist utopianism in politics. This from you is mistaken (and foolishly ideological):

          It is called rational governance, and is the basis of the prosperity of modern society. History has shown unequivocally that your position is wrong, and that arbitrary power that “balances interests” is wrong.

          At best, that proposition is controversial, and brilliantly contested besides. For an example, read, Rationalism in Politics and other essays, by Michael Oakeshott.

          1. So your way to interpret the constitution is based on what you think is best, not what it says. I think everyone would say that is nonsense.

            If you want experience-based restrictions on speech, amend the constitution. You won’t get far.

            1. No. You have no idea what I think. I can tell, because nothing you wrote about me can be inferred from what I wrote.

              1. I say you are arguing in favor of experience-based politics. That is irrelevant if you interpret the constitution as it is. So, yes, that can be inferred quite readily.

                Given that you claimed the vote for/vote against distinction as content based, rather than viewpoint based tells me you don’t actually know First Amendment jurisprudence in the slightest.

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