Melissa Walsh

Farms signs ordinance amended for First Amendment protection

Grosse Pointe News | December 7th, 2017

Farms signs ordinance amended for First Amendment protection

By Melissa Walsh

Grosse Pointe Farms — Responding to First Amendment concerns of Farms residents, city attorney William Burgess submitted an amendment to Ordinance No. 193 “An Ordinance to Regulate Signs” during the Farms City Council meeting Monday, Dec. 4. City council unanimously approved the amendment.

Farms resident Tina Agnello and several other residents expressed opposition to the ordinance’s regulation of “Signs in Residential and in Community Service and Recreation Districts” during the Sept. 11, 2017 city council meeting, charging the ordinance was not content-neutral nor enforced equally, denying them First Amendment-protected free speech.

When Agnello received notification from the city last summer to remove the “Black Lives Matter” and Welcome Neighbors” signs from her lawn, she consulted attorney Michael Steinberg, Legal Director for the ACLU of Michigan, who represented plaintiffs in similar complaints against the City of Grosse Pointe Woods in 2004 and the City of Troy in 2005.

“The U.S. Supreme Court has been clear that homeowners have the right to express themselves on their own property,” Steinberg told Grosse Pointe News. “And political signs contain the most vigorous protection.”

The amended changes to the ordinance fall into three areas: the duration of signs, the regulation of “announcement” signs and the location of signs. Existing content-neutral, aesthetic and safety regulations remain, such as size and illumination restrictions.

Though Burgess did not specifically identify the Woods and Troy cases during the Nov 15 and Dec. 4 meetings, both cases successfully challenged the duration constraint of political signs prior to an election. As a result, paragraph (2)(c) of the amendment does not limit the start date for posting a temporary political election sign, but retains the requirement to remove the sign within five days following an election. The content-neutral removal requirement is the same for temporary commercial signs, such as real estate and contractor signs.

During public comment during the Nov. 15 meeting, Agnello urged city council to consider issues related to differentiating “announcement” signs from “political” signs. Political speech signs prompting this issue, Agnello explained, — ‘Black Lives Matter,’ ‘Welcome Neighbors’ and ‘Make America Great Again’ — are political announcement signs.

“To make the distinction that some is political speech and campaign-related and some is announcement-related is tricky,” she said.

Burgess said the amendment applies a broad definition of “announcement” as, “those signs that pertain to literally anything else” other than commercial speech.

Paragraph (2)(e) of the amendment addresses announcement signs while removing the term “announcement,” stating, “additional signage that, in each instance is non-duplicative with other signs on the premises…,” including a wide range of non-commercial messaging, including graduation announcements and political statements.

Steinberg said sign ordinance issues “have turned the First Amendment on its head.”

“If the purpose is to have an aesthetically pleasing neighborhood, homeowners usually take care of that themselves,” he said. “If the purpose of the restriction is to suppress free speech, then that’s the issue. It has to be a reasonable restriction on free speech.”

A “reasonable restriction,” he said must be “content-neutral” and “narrowly tailored,” such as regulating sign size, illumination and placement.

Paragraph (2)(f) of the amendment restricts sign placement, limiting posting a lawn sign no closer than 3 feet from a sidewalk or other public walkway, unless approved by the Director of Public Safety.

During the the Nov. 15 meeting, Agnello commended city administrators and the city attorney as “extremely responsive”

“It restores my faith in municipal government,” she said.

[Sidebar]

Comparable signs ordinance cases

Adzigian v. The City of Grosse Pointe Woods
 In Mary C. Adzigian v. The City of Grosse Pointe Woods filed in Sept. 2004, the plaintiff argued the 30-day durational limit and the one-sign-per-candidate provision violated “plaintiff’s First Amendment rights where it (1) is content-based, (2) is not narrowly tailored, and (3) fails to leave open adequate alternative means of communication.” The case cited four Supreme Court case precedents, including City of Ladue v. Gilleo (1994), which ruled a sign at one’s home “is a venerable means of communications that is both unique and important.” Further, the opinion states, the First Amendment has “its fullest and most urgent application to speech uttered during a campaign for political office.”

The plaintiff in the Woods case charged the ordinance as an "unconstitutional abridgement of free speech," arguing it was content-based “because the message conveyed on the sign determines whether the sign is subject to the 30-day restriction,” which was “not narrowly tailored to further the city’s interest in traffic safety and aesthetics where the ordinance does not place time limits on certain commercial signs and advocacy signs other than election signs.” Further, the plaintiff argued, “the ordinance does not leave ample alternative means to communicate one’s support for a candidate more than 30 days before an election.”

In the settlement agreement reached in Oct. 2004, the City of Grosse Pointe Woods agreed to amend its signs ordinance to remove the “no more than 30 days prior to an election” restriction on political campaign signs.

Fehribach v. The City of Troy

In Kent Lawrence Fehribach, Jr. v. The City of Troy filed in Sept. 2005, the plaintiff submitted a complaint against a similar signs ordinance regulating political signs not to be placed 30 days prior to an election and allowing only one sign per candidate or proposal. U.S. District Judge Paul V. Gadola ruled the signs ordinance as unconstitutional in a judgment dated Jan. 2006

—Melissa Walsh