Campaign Signs Ruling From Supreme Court Pits Kansas Versus Its Cities
By Dion Lefler
Jennifer Winn said she planted 70 campaign signs in Haysville last week, thinking they would be protected by a new state law requiring cities and counties to let campaigns post yard signs on street rights-of-way.
Later that same day, a city police officer plucked the signs out of the ground and confiscated them.
"I worked my butt off actually," said Winn, a former governor candidate. "I came back down Meridian and every sign I put up was gone."
Winn said she thinks the seizure of the signs -- supporting state House candidate Justin Kraemer and district judge candidate Quentin Pittman -- was illegal, citing the state law passed last year as House Bill 2183.
But both Haysville and Wichita have decided to defy that state law.
"It's not constitutional," Wichita City Attorney Jennifer Magana said of the state law. "We have concerns about its enforceability."
The major concern is that the law creates different rules for campaign signs and signs with other types of messages. That, Magana said, conflicts with a 2014 Supreme Court decision that city sign ordinances have to be "content neutral."
Haysville also thinks the new state law is unconstitutional, said Will Black, chief administrative officer. He said the city is enforcing its current sign ordinance while working to rewrite it to comply with the Supreme Court ruling.
Black said the Haysville sign code isn't content-neutral either because it bans campaign signs but allows garage-sale and real estate signs in the right-of-way.
"We're trying to shore up whether (signs) are allowed or disallowed," he said.
The cities' noncompliance with the state law rankles Rep. Tom Sawyer, D-Wichita, the ranking minority member on the House Elections Committee.
He said allowing some signs to be displayed for a limited time before an election expands freedom of speech, instead of prohibiting it like banning signs entirely on the rights-of-way.
"Apparently cities and counties are just doing whatever they want," he said. "It seems to me these guys are ignoring the state law.
"I would hope cities and counties would make an effort to follow the law as much as possible."
Wichita bans campaign signs on public property and on private property where the city holds a street easement.
Happens every election
It's an issue that comes up every election, especially when residents post yard signs in the strip of grass between the sidewalk and the curb.
Technically, the homeowner owns that strip of land and has the responsibility to make sure it's mowed and maintained.
But the city typically holds an easement for street usage from the center of the street to the sidewalk and has interpreted that to mean it can regulate signs on any part of that ground.
HB 2183 sought to strip cities and counties of the authority to pass blanket bans on political signs in landscaped, privately owned right-of-way. Under that law, a local government would have to allow small campaign signs in the 45 days leading up to an election.
The law does give local government the authority to prohibit signs in areas where they could block drivers' sight lines or otherwise cause a hazard.
Winn said banning signs along prominent streets is a disadvantage to grassroots activists. Instead, it favors candidates with "a corporate war chest that comes with a corporate agenda," because they can afford to get their message out with more expensive direct mailings and broadcast advertising.
She said she was especially puzzled because her landscaping company has a contract to mow Wichita rights-of-way -- and she got a letter from the Parks Department citing the state law and telling her to replace any campaign signs that have to be removed for mowing.
Magana said the Parks Department apparently hadn't been informed that the city was continuing to enforce its own ordinance and not the state's law. Late Friday, she said the department will be sending out a new letter to its mowing contractors.
Supreme Court unanimous
Magana said her judgment that the state law is unconstitutional springs from the Supreme Court decision in a case called Reed v. Town of Gilbert, Ariz.
That case revolved around the placement of temporary signs on public property to direct people to a church's services on Sundays. Town officials seized a sign and cited the church for violating its ordinance.
The court ruled the ordinance unconstitutional because it had different rules governing placement and size of temporary signs, based on the messages on the signs.
Campaign signs had to comply with tighter rules than issue-advocacy signs. And the rules were tighter still for signs announcing an event.
The justices ruled unanimously that Gilbert's sign ordinance was unconstitutional, although they filed four separate opinions explaining why.
The majority opinion, by Justice Clarence Thomas, said regulations affecting free speech had to be content neutral or be subjected to "strict scrutiny." That's a legal doctrine that says government must prove a compelling public interest to regulate free-speech activity and enforce it as narrowly as possible.
"The First Amendment requires no less," Thomas wrote. "Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech."
Although the justices were unanimous in striking down Gilbert's ordinance, not all agreed with the part of the ruling that appeared to apply strict scrutiny to every content-based sign regulation.
Justices Elena Kagan, Ruth Bader Ginsberg and Stephen Breyer joined a concurring opinion saying Gilbert's ordinance didn't pass the "laugh test" for content neutrality.
But their opinion also pointed out that cities regularly -- and until now legally -- allow content-based exemptions to sign codes, such as address numbers, historical markers or "for sale" signs on homes where signs are generally prohibited.
"The consequence -- unless courts water down strict scrutiny to something unrecognizable -- is that our communities will find themselves in an unenviable bind: They will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter," Kagan wrote.
"This Court may soon find itself a veritable Supreme Board of Sign Review," she wrote.
(c)2016 The Wichita Eagle (Wichita, Kan.)