State’s new sign law likely to cause legal problems, may be unconstitutional

Kansas lawmakers probably thought they were standing up for First Amendment freedoms when they passed a bill this year prohibiting cities and counties from regulating the placement of political yard signs. Or, maybe they were just acting in their own political self-interest.

Either way, officials at the League of Kansas Municipalities are now saying that instead of standing up for the First Amendment, lawmakers very probably violated it. And they’re advising city councils and city attorneys to read up on a recent U.S. Supreme Court decision and to review their own ordinances to make sure they comply with federal law.

The provision of House Bill 2183 sprang out of controversy in Johnson County, where some cities had passed ordinances restricting the number of signs a resident could put in his or her yard. There have also been controversies in virtually every town about that strip of grass between the street and the sidewalk, which some cities hold is part of a public right-of-way, even though the homeowner or renter is responsible for mowing it.

The relevant part of the bill, which also deals with a number of other election and campaign finance issues, states:

“No city or county shall regulate or
prohibit the placement of or the
number of political signs on private
property or the unpaved right-of-way
for city streets or county roads on
private property during the 45-day
period prior to any election and the
two-day period following any such
election. Cities and counties may
regulate the size and a set-back
distance for the placement of signs so
as not to impede sight lines or sight
distance for safety reasons.”

The bill –which, I repeat, had a lot of other provisions in it — passed the Senate on Saturday, May 30, by a vote of 27-11. Democratic Sen. Tom Holland of Baldwin City voted no; Sen. Marci Francisco of Lawrence was present but didn’t vote. The next day, a Sunday (yes, lawmakers were meeting over the weekend), it passed the House, 66-48. All three Democrats from Lawrence voted yes: Barbara Ballard, Boog Highberger and John Wilson. Republican Tom Sloan voted no.

Gov. Sam Brownback signed it into law the following Friday, June 5.

But two weeks later, on June 18, the U.S. Supreme Court struck down a somewhat similar ordinance in the case of Reed vs. Town of Gilbert, Ariz. There, a local ordinance prohibited displaying outdoor signs without a permit, with several notable exceptions. In those cases, the law applied different restrictions to “ideological” signs that convey an idea or philosophy; campaign signs that are meant to influence the outcome of an election; and “temporary directional” signs that point people to the location of a particular event.

Oddly, it was those temporary directional signs that got the town in trouble because a local church organization that met in different locations each week routinely violated the ordinance.

Nevertheless, the court, in a rare unanimous decision, struck down the law as a violation of the First Amendment protection of free speech. The problem, the court said, was that different regulations applied to different signs based on the content of the speech. Political speech was treated differently from ideological speech, and they were both different from speech pointing people to a church service.

If the town had been concerned about public safety, such as signs blocking a driver’s view of an intersection, or if it was concerned about aesthetics, then it wouldn’t matter what message was printed on the sign. All signs would be treated the same. But that’s not what the folks of Gilbert, Ariz., did. They discriminated based on the content of the sign’s message.

A federal judge in Kansas reached a similar conclusion in 1999, in the case of Outdoor Systems vs. Lenexa, when she struck down an ordinance that required permits for certain kinds of signs, but not political signs. it also placed restrictions on political signs, including a requirement that they be taken down within seven days after the election.

Officials at the League of Kansas Municipalities said they’ve already fielded a number of calls and emails from city attorneys asking questions about Kansas’ new law. And in an article published in the League’s monthly Kansas Government Journal, Larry Baer, the League’s general counsel, says it is unlikely that the new Kansas law can withstand a constitutional challenge.

“It is the League’s opinion that this provision does not meet the tests set forward in Reed or Outdoor Systems and, as such, is unconstitutional because it regulates placement and duration of a content-based sign purely upon the nature of the message being delivered,” Baer wrote. “Until such time as HB 2183, Sec. 15, is repealed by the Legislature or found to be unconstitutional, it does remain law in Kansas.”