By David E. Wynkoop

Political signs placed in public rights-of-way (ROW) are a minefield for road agencies. That minefield is even more treacherous after the 2015 case of Reed v. Town of Gilbert, Arizona (Reed).   The American Civil Liberties Union (ACLU) has recently threatened to sue at least one Idaho road agency for removal of political signs based on the Reed case.

Idaho road agencies have a duty to promote public safety. Signs placed in ROWs may create hazards. Thus, some agencies prohibit all ROW signs by policy or ordinance, while others set limits on placement of signs, and others have no policy at all. The rigor and consistency of enforcement may vary among agencies and sometimes even within an agency.

At issue in Reed were church directional and informational signs placed in ROWs by a church, but the Court also discussed political signs. The City of Gilbert (City) had a sign code which permitted some ROW signs, but prohibited the signs placed by the Good News Community Church (Church). City employees removed the Church signs as noncompliant with the City’s sign ordinance. The Church pastor (Reed) sued the City alleging the sign code violated the First Amendment to the United States Constitution. The trial court and the Ninth Circuit Court upheld the City sign ordinance and the sign removal by City employees. Reed then appealed to the United States Supreme Court (USSC). The USSC held that because the City prohibited some signs but not others, the City’s sign ordinance was based on the “content” of the signs in violation of the First Amendment. Any government regulation of speech content is subject to “strict scrutiny”. This means a public agency removing a sign has a heavy burden of proof to establish that the removal is justified by safety or other reasons. Historically, once a government action is held to be subject to strict scrutiny, it is difficult to justify the action to the satisfaction of the court. Any adverse court ruling against a public agency entails a significant risk of an attorney fees award.

The Court acknowledged that reasonable regulation of signs for safety reasons is permitted and that an agency may prohibit all signs if it does so in an evenhanded and content-neutral manner.

A concurring opinion provided guidance on how signs might be regulated.

…here are some rules that would not be content based:

   Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below.

   Rules regulating the locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings.

   Rules distinguishing between lighted and unlighted signs.

   Rules distinguishing between signs with fixed messages and electronic signs with messages that change.

   Rules that distinguish between the placement of signs on private and public property.

   Rules distinguishing between the placement of signs on commercial and residential property.

   Rules distinguishing between on-premises and off-premises signs.

   Rules restricting the total number of signs allowed per mile of roadway.

   Rules imposing time restrictions on signs advertising a one-time event.

RECOMMENDATIONS

1. Review your sign placement/removal policy in light of Reed.
2. A policy should be adopted by your governing body by ordinance or resolution. If there is no formal policy, it is likely an informal policy has been implemented by your staff.
3. A policy of no ROW signage may be unrealistic, because real estate and special event or garage sale signs will likely be placed in your ROWs and it is difficult to immediately remove all such signs. Such a prohibition likely will withstand judicial scrutiny only if actively and consistently enforced.
4. Enforce any sign policy consistently. Do not favor one candidate over another. Especially, do not favor an incumbent from your agency.
5. Consider having a policy which applies equally to all signs, including political, real estate and special event signs. Political signs are afforded a high level of First Amendment protection, but other signs may also have protected status, such as the church signs in Reed.
6. Do not destroy signs removed by your staff. Place them in a secure location and allow them to be retrieved by candidates. Your agency will be especially at risk if your employees destroy some removed signs, but not others.
7. If you think it is appropriate for your agency to adopt a new sign policy, consider using another agency’s sign policy as a starting point, rather than reinventing the wheel. One example is the sign policy of the Ada County Highway District which may be found at www.achdidaho.org/AboutACHD/policyManual.aspx.
8. Inaction is not a realistic option. Signs which create a hazard must be removed or relocated. Any sign obscuring the view of regulatory signage must be immediately dealt with. No reasonable person would argue against immediate removal of a 4 ft. by 8 ft. sign placed against a stop sign. Signs placed in violation of the sight vision triangle (see Idaho Code Section 49-221) should be removed or relocated. Also, private signs which mimic regulatory or directional signs, such as stop or yield signs, must be removed. (See Idaho Code Section 40-1910(2)).

CONCLUSION

Do not subject your agency to an unreasonable risk of litigation and attorney fees. In Idaho, the ACLU has recovered large attorney fee awards when it prevails in litigation against public agencies.

Navigating this minefield cannot be avoided. Take-action to reduce the risk of an explosion and to reduce damages if an explosion occurs. Adopt and enforce a sign policy which is consistent with the Reed decision.

David E. Wynkoop

Mr. Wynkoop has actively practiced as an Idaho attorney for 39 years. He represents numerous Idaho local highway agencies as well as the Local Highway Technical Assistance Council. Mr. Wynkoop previously served as General Counsel and Commissioner for the Ada County Highway District. He is past Chairman of the Government Attorney Section of the Idaho State Bar. Mr. Wynkoop is a partner in the firm of SHERER & WYNKOOP, LLP, 730 N. Main St., Meridian, Idaho 83642, phone 208-887-4800.