Originally published in Contra Costa Lawyer.
Over three years ago, when "only" 200 soldiers had died in Iraq the organizers of the Iraq Memorial made 20 crosses and put them on a Lafayette hillside. This brought the police, who stopped and questioned the organizers as they were placing the crosses. People in passing cars yelled furiously at them. Although the crosses were on private property and did not violate the Lafayette sign ordinance, they were vandalized and destroyed that night. This speech was not allowed.
As the number of soldiers killed in Iraq reached the thousands, the organizers decided to try again. In November 2006, the same hillside had political and election-related signs, which, though numerous and large, did not generate complaints to the Lafayette City Council. The organizers waited until after the election to create the Memorial, beginning with 420 crosses and a large sign (approximately 64 square feet) reading "IN MEMORY OF 2,867 U.S. TROOPS KILLED IN IRAQ".
The Lafayette City Council was flooded with complaints as soon as the Memorial appeared. The Memorial was again vandalized, once by a woman who trespassed and destroyed part of the Memorial, and a second time when the large sign was covered with black tar. The property owners and organizers, although aware of the identity of at least one of the vandals, declined to press charges. The property owners and organizers, though aware of the identity of at least one vandal, declined to press charges.
The Memorial now sits on two privately owned lots on the Lafayette hillside and is visible from both Highway 24 and BART. As of February 2007, the Memorial had over 2000 crosses, stars of David, and crescents, representing the fallen U.S. soldiers, and a large sign that stated "IN MEMORY OF 3111 U.S. TROOPS KILLED IN IRAQ". The number increases along with the number of dead American soldiers. The Memorial has sparked a lively debate over the parameters of "free speech" and received extensive local and national news coverage.
It does not appear that the size or number of signs caused the reaction so much as the message. However, as stated by the U.S. Supreme Court in the "fighting words" case, "a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4 (1949). The Memorial appears to have succeeded in this respect.
In response to the intense public interest and the high emotions generated by the Memorial the City initially told the organizers to remove or reduce the size of the large sign. The City claimed that its Ordinance limited the size of political signs to six square feet, and that the large sign violated this Ordinance. However, the City recognized that because each cross was less than four square feet the crosses were exempt under the Ordinance and could not be regulated by the City.
The organizers considered the large sign also to be exempt as part of the Memorial and refused to reduce or remove the sign. In late November 2006, the Lafayette City Council held a well-attended public hearing on the Memorial, where the majority of people spoke in favor of it. At the conclusion of the hearing, the Council directed staff to determine whether the Memorial was consistent with the City's Ordinance. The City did not require the organizers to move or reduce the large sign pending staff's report.
THE LAFAYETTE ORDINANCE AND THE FIRST AMENDMENT
The City of Lafayette's sign Ordinance exempts from permit requirements various types of signs, for example bumper stickers, city-owned signs and window signs. It also exempts memorial signs not exceeding four square feet (Ordinance Â§ 6-2521(h)) and political signs not exceeding six square feet (Ordinance Â§Â§ 6-2521(l), 6-2570). The Ordinance does not contain any limit to the number of exempt political or memorial signs. Because each cross, star of David, and crescent is no larger than four square feet, the City Ordinance does not provide any basis to limit their number.
The Lafayette sign Ordinance purports to give the City the right to regulate signs on private property. Generally, the government may regulate speech activities on private property where a substantial governmental interest is involved. For example, in Young v. American Mini Theatres, 427 U.S. 50 (1976), the City of Detroit enacted an ordinance that regulated the location and spacing of adult movie theatres, but not other movie theatres. The Court held that the ordinance was not unconstitutional, noting that: "[r]easonable regulations of the time, place, and manner of protected speech, where those regulations are necessary to further significant governmental interests, are permitted by the First Amendment." See, e.g., Kovacs v. Cooper, 336 U.S. 77 (limitation on use of sound trucks); Cox v. Louisiana, 379 U.S. 559 (ban on demonstrations in or near a courthouse with the intent to obstruct justice); Grayned v. City of Rockford, 408 U.S. 104 (ban on willful making, on grounds adjacent to a school, of any noise which disturbs the good order of the school session).
Similarly, in PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980), the Court stated: "[i]t is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision."
However, the Lafayette Ordinance imposes greater restrictions on political speech than on commercial speech. As stated above, the Lafayette Ordinance contains exemptions for political signs that are six square feet or smaller and memorial signs that are four square feet or smaller. It also exempts certain constructions signs that are 32 square feet or smaller. Ordinance Â§ 6-2521(q)). Similarly, on unimproved residential property, the Ordinance allows a "for sale" or "for lease" sign that is no larger than 32 square feet. Ordinance, Â§ 6-2571(e).
The U.S. Supreme Court has consistently held that political speech is entitled to greater protection than commercial speech. In Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456 (1978), the Court stated: "To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression."
Thus, the Supreme Court explicitly stated in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 562-563 (1980), "The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression."
But the Lafayette Ordinance turns this rule on its head, and favors commercial signs over those with political content. A political sign would violate the ordinance if its more than six square foot, whereas a commercial sign would not.
As explained in Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998), although a city may enact time, place and manner restrictions on signs, these restrictions must be content neutral. Foti discusses a Menlo Park ordinance that prohibited signs on public property, with certain exemptions for real estate, safety, traffic and public information signs. The Court held the Menlo Park ordinance was unconstitutional. The exemptions were content based because "a law enforcement officer must examine the content of . . . signs to determine whether the exemption applies."
Under the Lafayette Ordinance, a law enforcement officer would have to read the content of a sign to determine which size limit in the Lafayette Ordinance applies. It is only after reading the content of the sign that a law enforcement officer would know if a violation has occurred. And, under the Ordinance a 32 square foot "for sale" sign is exempt from permit requirements, while a permit is required for memorials or political signs that are much smaller. Thus, the Ordinance is not content neutral, and contains impermissible content-based restrictions.
The Ordinance is also vague and violates due process. There is no consensus whether it the large sign is a "memorial" or a "political" sign, and it was unclear which size limit would apply. The organizers intended the large sign to be part of the Memorial, and refer to it in that manner. Others consider the large sign to be a political sign. As stated in Foti, a "fundamental requirement of due process is that a statute must clearly delineate the conduct it proscribes . . . . Moreover, when First Amendment freedoms are at stake, an ever greater degree of specificity and clarity of law is required." Foti, 146 F.3d at ___.
FEBRUARY CITY COUNCIL MEETING
While City staff was preparing the report on the Ordinance the Mayor, Vice-Mayor and City Manager met with the organizers. To avoid litigation over these Constitutional and regulatory issues, the City, Memorial organizers and the landowners reached a compromise.
The compromise does not limit the number of crosses, stars of David, or crescents. The City explains that these are less than four square feet and thus are exempt from regulation under the existing Ordinance and cannot be restricted. The compromise requires the organizers to reduce the large sign to 32 square feet consonant with the restrictions on commercial size. Because the City Ordinance allows a 32 square foot sign on unimproved, residential lots, the City concluded that it could not limit a political sign to less than 32 square feet. In addition, because only one of the two lots on the hillside is unimproved residential, the City also concluded that the large sign should be on that lot. Thus, the organizers agreed to move the sign approximately 20 yards west, onto the unimproved residential lot. Finally, because yet another section of the Ordinance does not allow flags to be affixed to signs, the organizers and the City agreed to remove the flag from the sign, and place it next to the sign.
At the February 2007 City Council hearing, the Lafayette City Council directed the Mayor to sign a Memorandum of Understanding which sets forth the terms of the compromise. The organizers and property owners also signed, and the Memorandum is now binding and in effect.
Time, place and manner restrictions of speech are permissible, but they must give equal or greater protection to political speech than to commercial speech. Controversial political speech must be a higher priority under the First Amendment because it is in greater need for Constitutional protection against content-based regulation. Fortunately, within our Constitutional framework, the parties were able to compromise and preserve the right to speech.
Sharon Adams is a registered patent attorney and specializes in patents, trademarks and other intellectual property matters. She is also a member of the National Lawyers Guild, attended both Lafayette City Council hearings, and wrote a letter on behalf of the Guild to the City on this issue.