motorists, displace alternative uses for land, and pose other
problems that legitimately call for regulation." City of Ladue,
512 U.S. at 48, 114 S.Ct. 2038.
The Supreme Court has recognized limitations on political signs
in a variety of circumstances. In Members of City Council v.
Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d
772 (1984), for example, the Court upheld a ban on political
signs on public property, specifically utility poles. In Burson
v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992),
the Court upheld a ban on temporary political signs within 100
feet of polling places. Courts have also routinely upheld
regulation of signs by size and shape. Cf., e.g., Outdoor Sys.,
Inc. v. City of Mesa, 997 F.2d 604, 615 (9th Cir. 1993). Indeed,
in the present case Plaintiffs raise no challenge to any portion
of the County zoning ordinance that would affect the size, shape
or location of campaign signs.
In analyzing whether a governmental burden upon political
speech will be permitted, the conventional approach has been to
begin by determining first whether the burden on the speech is
content-based or content-neutral. If content-based, the
Government is required to show a compelling interest before the
burden will be sustained. A rule of strict scrutiny applies. See
Burson, 504 U.S. at 197-98, 112 S.Ct. 1846. "With rare
exceptions, content discrimination in regulations of the speech
of private citizens on private property or in a traditional
public forum is presumptively impermissible, and this presumption
is a very strong one." City of Ladue, 512 U.S. at 59, 114 S.Ct.
2038 (O'Connor, J. concurring). Even where the government has
declared a policy of promoting aesthetics and traffic safety,
both recognized as "substantial governmental goals," see
Arlington County Republican Comm., 983 F.2d at 594, restrictions
intended to accomplish those interests have failed to pass strict
scrutiny and have been struck down. See, e.g., City of Ladue,
512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36; Rappa v. New Castle
County, 18 F.3d 1043 (3rd Cir. 1994); Arlington County
Republican Committee, 983 F.2d 587.
If, on the other hand, the burden on the speech is deemed
content-neutral, a less strict standard of scrutiny applies. The
government need only show that it has a significant interest at
stake, that its regulation is narrowly tailored to promote that
interest, and that ample alternative means are available that
would permit the desired communication. Burson, 504 U.S. at
197, 112 S.Ct. 1846; Arlington County Republican Comm., 983
F.2d at 593.
Until City of Ladue, virtually all courts that considered the
constitutionality of pre-election durational limitation on
political campaign signs engaged in the conventional analysis and
found the limitations to be content-based. See, e.g., Whitton,
54 F.3d at 1404 (8th Cir. 1995) (city ordinance found to be
content-based where "the words on a sign define whether it is
subject to durational limitations"); Dimas v. City of Warren,
939 F. Supp. 554, 556-57 (E.D.Mich. 1996) (ordinance permitting
temporary election signs for only 45 days prior to election "is
not content-neutral"); Orazio v. Town of North Hempstead,
426 F. Supp. 1144, 1149 (E.D.N.Y. 1977) (ordinance containing
"pre-election time limit . . . discriminates against political
wall signs solely on the basis of their content"); see also City
of Antioch v. Candidates' Outdoor Graphic Serv., 557 F. Supp. 52,
58 (ordinance limiting posting of outdoor political signs to 60
days prior to election was viewpoint neutral, but "by singling
out political signs for restrictive treatment . . . (the)
ordinance clearly conflicts with . . . Metromedia, [Inc. v. San
Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981)]";
Collier v. City of Tacoma, 121 Wn.2d 737, 854 P.2d 1046, 1053
(Wash. 1993) (en banc) (ordinances limiting posting of political
signs to 60 days prior to election "fall within the realm of
content-based restrictions"). Again, while recognizing aesthetics
and traffic safety to be "significant government interests," none
of these courts found those interests sufficiently compelling to
pass the applicable strict scrutiny test. See, e.g., McCormack
v. Township of Clinton, 872 F. Supp. 1320, 1325, n. 2 ("[N]o
court has ever held that [interests in aesthetics and traffic
safety] form a compelling justification for a content-based
restriction of political speech"); Whitton v. City of
Gladstone, 832 F. Supp. 1329, 1335 (W.D.Mo. 1993) ("[t]raffic
safety and aesthetics are significant interests . . . but they
are not compelling interests, especially given the nature of the
First Amendment rights at stake"). Accordingly, these courts held
durational restrictions on political signs to be
In City of Ladue, the Supreme Court took a different tack.
512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36. The Court was faced
with a city ordinance that effectively banned any "cause" signs
displayed from a private residence. Id. at 45, 114 S.Ct. 2038.
Among several exemptions from the prohibition were "for sale"
signs. Id. Gilleo had been deemed in violation of the ordinance
because she posted a sign in her window saying "For Peace in the
Gulf." Id. But instead of pursuing the "normal inquiry . . .
first, to determine whether a regulation is content-based or
content-neutral, and then, based on the answer to that question,
to apply the proper level of scrutiny," Id. at 59, 114 S.Ct.
2038 (O'Connor, J., concurring), the Court assumed arguendo
that the ordinance was "free of impermissible content or
viewpoint discrimination," Id. at 53, 114 S.Ct. 2038, and
promptly proceeded to acknowledge the city's "interest in
minimizing the visual clutter associated with signs," Id. at
54, 114 S.Ct. 2038. The Court then launched into a broadscale
encomium with respect to signs displayed on private residences,
which it termed "a venerable means of communication that is both
unique and important." Id.
The Court's comments bear quoting in extenso because of their
relevance to the disposition of the present case:
Signs that react to a local happening or express a
view on a controversial issue both reflect and
animate change in the life of a community. Often
placed on lawns or in windows, residential signs play
an important part in political campaigns, during
which they are displayed to signal the resident's
support for particular candidates, parties or causes.
. . . They may not afford the same opportunities for
conveying complex ideas as do other media, but
residential signs have long been an important and
distinct medium of expression.
Displaying a sign from one's own residence often
carries a message quite distinct from placing the
same sign someplace else, or conveying the same text
or picture by other means. Precisely because of their
location, such signs provide information about the
identity of the "speaker." As an early and eminent
student of rhetoric observed, the identity of the
speaker is an important component of many attempts to
persuade. . . .
A sign advocating "Peace in the Gulf' in the front
lawn of a retired general or decorated war veteran
may provoke a different reaction than the same sign
in a 10-year-old child's bedroom window or the same
message on a bumper sticker of a passing automobile.
An espousal of socialism may carry different
implications when displayed on the grounds of a
stately mansion than when pasted on a factory wall or
an ambulatory sandwich board.
Residential signs are an unusually cheap and
convenient form of communication. Especially for
persons of modest means or limited mobility, a yard
or window sign may have no practical substitute . . .
Even for the affluent, the added costs in money or
time of taking out a newspaper advertisement, handing
out leaflets on the street, or standing in front of
one's house with a handheld sign may make the
difference between participating and not
participating in some public debate. . . .
Furthermore, a person who puts up a sign at her
residence often intends to reach neighbors, an
audience that could not be reached nearly as well by
other means (Emphasis in original).
A special respect for individual liberty in the home
has long been a part of our culture and our law . .
.; that principle has special resonance when the
government seeks to constrain a person's ability to
speak there . . . (Emphasis in original). Most
Americans would be understandably dismayed, given
that tradition, to learn
that it was illegal to display from their window an
8- by 11-inch sign expressing their political views.
Whereas the government's need to mediate among
various competing uses, including expressive ones,
for public streets and facilities is constant and
unavoidable . . . . its need to regulate temperate
speech from the home is surely much less pressing . .
. (citations and footnotes omitted)
512 U.S. at 54-58, 114 S.Ct. 2038.
The Court thus assumed the content-neutrality of the ban,
acknowledged the City's interest in clutter — which is to say
aesthetics and traffic safety — but, given the special nature of
"cause" speech emanating from private residential property, found
that ample alternative means for communicating the message did
not exist and struck the ordinance down. City of Ladue, 512
U.S. at 58, 114 S.Ct. 2038.
City of Ladue's ordinance, to be sure, established a nearly
total ban on residential signs. But the language of the Court's
opinion leaves little room to argue that an extended durational
ban on such signs, whether the message supports a cause or a
political candidate, is any more acceptable. In the first place,
there is no natural terminal date for a "cause" sign; a cause and
a private resident's passion for it exists as long as the cause
exists. Yet the Court in Ladue speaks interchangeably of
"cause" and "political" signs. See 512 U.S. at 55, 114 S.Ct.
2038. Moreover, a number of problems arise in attempting to make
any distinction between the two. To recur to Plaintiffs'
arguments on the void-for-vagueness issue:
When does a "cause" sign cease being a "cause" sign and become
a political one? If a "cause" sign is linked to a political
candidate or a ballot question and the candidate or ballot fails,
what happens if the private resident wishes to continue promoting
the cause after the election? Ultimately, why is the expression
of personal support for a viable reform candidate capable of
bringing immediate changes to government any less deserving of
support than the expression of an opinion in support of a cause
that is fringe in nature and which has little or no hope of ever
becoming a reality?
In this Court's view, such questions effectively answer
themselves. There is no distinction to be made between the
political campaign signs in the present case and the "cause" sign
in City of Ladue. When political campaign signs are posted on
private residences, they merit the same special solicitude and
protection established for cause signs in City of Ladue.
City of Ladue does state that the Court's decision that the
city's "ban on almost all residential signs violates the First
Amendment by no means leaves the City powerless to address the
ills that may be associated with residential signs." 512 U.S. at
58, 114 S.Ct. 2038. In a footnote the Court suggests that signs,
"whether political or otherwise," displayed by residents for a
fee or offsite commercial advertisements on residential property
might be regulated. Id. at n. 17, 114 S.Ct. 2038. The Court
also observes that it was "not confronted [in the case] with mere
regulations short of a ban," Id., and that it was "confident
that more temperate measures could in large part satisfy Ladue's
stated regulatory needs without harm to the First Amendment
rights of its citizens." 512 U.S. at 58-59, 114 S.Ct. 2038.
But the Court's principal argument with regard to limitations
upon excessive sign use is that private residents will tend to
impose their own limitations:
It bears mentioning that individual residents
themselves have strong incentives to keep their own
property values up and to prevent "visual clutter" in
their own yards and neighborhoods — incentives
markedly different from those of persons who erect
signs on others' land, in others' neighbor hoods, or
on public property. Residents' self-interest
diminishes the danger of the "unlimited"
proliferation of residential signs that concerns the
City of Ladue.
512 U.S. at 58, 114 S.Ct. 2038.