Posted by: Patricia Salkin | August 20, 2014

Sixth Circuit Court of Appeals Upholds Municipal Ordinance Prescribing Size and Height of Political Signs

The City of Garfield Heights (“City”) limited the size of signs, political and otherwise, that residents may place on their lawns. Frank Wagner, a City resident, placed a political sign on his lawn that was larger than the City allows. The district court found that the City’s restriction on Wagner’s political speech violated the First Amendment and the Circuit Court reversed.

The Circuit Court first looked at whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The district court found that the ordinance was content-based because the City must determine whether a sign is political in nature before it can determine which provision of the city code applies. Non-political signs are subject to a single-sign limitation, whereas political signs are not. The appeals court found that the failure to regulate political signs as heavily as non-political signs does not constitute content-based regulation. Because political signs are subject to no greater restrictions than are non-political signs, the court did not find that the ordinance imposed a content-based regulation. Accordingly, the court applied intermediate scrutiny to this case.

Here, the City’s interests in aesthetics and traffic safety were achieved more effectively by the presence—than by the absence—of the ordinance. Consequently, the ordinance satisfied the tailoring condition. The court found that Wagner retained numerous alternative ways to communicate his message. Not only may he hand out leaflets or take out newspaper advertisements, but he may blanket his lawn in signs that declare “Mahoney Baloney.” The one thing he may not do is post a sign that exceeds 6 square feet in area and 4 feet in height. The City’s political-sign ordinance therefore survived intermediate scrutiny because it served significant government interests, was narrowly tailored to promote those interests, and left open alternative channels of communication.
Because the court concluded that the ordinance imposed a content-neutral restriction on the time, place, and manner of speech, and because the City has satisfied the intermediate scrutiny applicable to such regulations, the Circuit Court reversed the district court’s decision in favor of Wagner.

Wagner v City of Garfield Heights, Ohio, 2014 WL 4067171 (6th Cir. 8/19/2014)

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