Posted by: Patricia Salkin | February 8, 2012

Third Circuit Court of Appeals Upholds Ordinance Restricting Posting of Signs on Certain City Property

A Philadelphia ordinance prohibited the posting of signs on utility poles, streetlights, sign posts, and trees in a public right-of-way.  It did not prohibit signs on private property, or otherwise restrict communication.  Any violating sign could be removed by the City, with the party responsible for the posting of the sign bearing the cost incurred in removal, in addition to a penalty of $75.  The ordinance, enacted after a similar ordinance was enjoined on First Amendment grounds, was designed to cure the earlier ordinance’s constitutional infirmities as well as to promote public safety and aesthetics in the City.  Two candidates for political office, who both had limited funds and campaigned in an area of the City that contained “a classic urban landscape” of row houses, challenged the ordinance on the basis that absent its prohibitions, they would have relied heavily on signs posted on street poles to spread their political messages. They had been either told to remove their signs or ticketed for violations.  They argued the ban “eliminate[d] any chance of electoral success” for candidates with limited resources, inasmuch as political signs were inexpensive and could “be localized in a fashion that no other medium offer[ed],” and claimed the ordinance violated the First, Fourteenth, and Twenty-Fourth Amendments (the latter based on claims that a City banner-permitting program favored commercial speech over political speech and, therefore, violated the Equal Protection Clause, and that the City’s ordinance was an unlawful poll tax).  The district court concluded otherwise and granted the City’s motion for summary judgment, concluding there was no genuine dispute as to any material fact (the plaintiffs had conceded the ordinance was content-neutral). 

On appeal, the Third Circuit affirmed. The ordinance advanced significant government interests of promoting public safety and aesthetics and controlling blight; it was narrowly tailored (it banned signs on or at specifically defined City property only), and left open alternative channels. The court specifically rejected the argument that because  “political posters [had] unique advantages including low cost and convenience to achieve name recognition,” especially in Philadelphia’s “gritty urban landscape with no front lawns,” the ban foreclosed reasonable low-cost alternatives.  The plaintiffs were not entitled to the opportunity to speak in their preferred, most cost-effective medium, and remained free to picket and parade, to distribute handbills, to carry signs and to post their signs and handbills on their automobiles and on private property. (In fact, one plaintiff “waged a successful campaign in spite of the ordinance’s restrictions, winning both the Democratic primary and the general election for State Representative.”) 

Because the plaintiffs conceded that they did not seek to participate in the banner program and raised no fact in the record indicating any preferential treatment of commercial speech, the equal protection argument failed.  Further, even if the Twenty-Fourth Amendment were applicable to state and local elections, the City’s ordinance would not violate it because it did not make any voter pay any fees to vote. “Because there is no evidence that the City’s ordinance taxed voters or otherwise made voter affluence an electoral standard, there is no issue for trial as to [the] Twenty-Fourth Amendment claim.” 

Johnson v. City of Philadelphia, 2011 WL 6760334 (3rd Cir. 12/27/2011). 

See http://www.ca3.uscourts.gov/opinarch/104185p.pdf 

This abstract appears in IMLA News Jan. 25, 2012.  For more information about IMLA visit: www.imla.org

 


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