Posted by: Patricia Salkin | January 28, 2011

District Court Rules Local Law on Signs Violates Free Speech

The Southern District of New York issued an unpublished decision that discusses the various components that into reviewing sign regulations. The District Court ruled that the Village of Airmont sign ordinance violated a political candidate’s First Amendment right to free speech. There, plaintiff was a candidate running for office of the 12th Legislative District of the County of Rockland in the 2007 election and in connection with his campaign, he posted hundreds of signs. The Airmont deputy mayor and trustee Joseph Meyers was also a candidate for the same position. On August 14, 2007, another trustee Maureen Schwarz, who identified herself as campaign manager for “Friends of Joe Meyers,” sent plaintiff a letter requesting that he remove his signs from the Wal-Mart shopping center claiming that Meyers had the exclusive right to post signs there. Plaintiff also claimed that 60-70 signs were stolen and Plaintiff alleged that the Ramapo police department was directed by Meyers to remove the signs from the Wal-Mart property. On September 25, 2007, the Building code Enforcement Officer issued a violation notice to plaintiff on the basis that he had allegedly violated the Village Code by posting a political sign in excess of the size limitations.

The Court ruled that the Village Code was unconstitutional as it “impermissibly regulated speech based on content and was not narrowly tailored to serve a compelling government interest.” As a threshold matter the Court determined that the Village Code is content-based as political signs “are in their own section of the Code with different limitations than those that apply to other temporary signs.” As an example, the Court noted that other temporary signs (such as historical markers, flags, numbers, private for-sale signs, etc) were exempt from permit requirements. Thus, the Court ruled that since the Village Code was a content-based regulation, “strict scrutiny” applies.

Applying the strict scrutiny standard, the Court ruled that the durational limits on political signs while exempting other signs altogether, the size limitations on political signs and the requirement to post a security deposit (albeit a fully-refundable security deposit) for political signs did not serve a compelling state interest and therefore, the Village Code was unconstitutional.

Relying upon Monell v. Dep’t of Social Services, 426 U.S. 658 (1978), which held that a municipality may be liable in a § 1983 suit for unconstitutional or illegal policies, the Court found that the Village was liable for the unconstitutionality of its Code and its policy of content-based regulation.

Nonetheless, applying the doctrine of privileged immunity, the Court dismissed the claims against defendants Meyers and Schwarz arising from their actions as Village Board members in connection with upholding the current code as the Court ruled they were entitled to legislative immunity. But these defendants would not be entitled to legislative immunity for actions falling outside of their legislative activities – like for example, Schwarz’s threat while acting as campaign manager for Meyer to remove his signs from Wal-Mart. Thus, the Court did not dismiss these non-legislative action claims.

Finally, the Court ruled that the Code enforcement officer was entitled to qualified immunity and dismissed the action as against the Code enforcement officer.

Withers v Village of Airmont,  07 civ. 9674 (SCR) (S.D.N.Y. 2010)

The opinion may be accessed at:

Special thanks to Steven Silverberg of Silverberg and Zalantis for this summary presented yesterday at the NYSBA Municipal Law Section meeting.

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