DAILY Legal News and Cleveland Recorder
Tuesday, November 7, 2000

Ohio Supreme Court Justice
Paul E. Pfeifer

Yard signs and free speech

Soon it will be all over. The campaigns, the fundraising, the commercials, all of it will finally be done. The voters will have had their say, and the newly and duly elected will be getting ready to take office. There will be only one order of business left to finish - taking down the yard signs.

Every year - just as sure as the buzzards will return to Hinckley - political signs spring up in front yards, "in storefront windows, along roadsides, anywhere someone might pass by and be swayed by the simple message to vote for that candidate. Yard signs are as much a part of autumn as the changing leaves, Halloween and the brown shocks of corn standing in the fields.

Whether we like seeing them or not, political yard signs are a pat of the landscape. But at what point do yard signs go from being political statements to becoming a cluttering nuisance? And should towns and cities be able to restrict yard signs? Those were some of the issues raised by a case that we decided recently at the Supreme Court of Ohio.

The case arose out of Painesville, a town in the northeast corner of the state. On October 15, 1997, a building inspector for the city noticed that a local law firm, Dworken & Bernstein, had erected a political sign in front of its building. Nothing out of the ordinary, right? Yard signs are up everywhere by mid-October, aren't they? Maybe in a lot of places, but not in Painesville. The city has an ordinance that strictly regulates "Political Advertising Signs." Specifically, the ordinance restricts the size and placement of the signs. It also places a time limit on their display - the signs in painesville can't go up until seventeen days before the election. After the election, the signs must come down inside of two days.

Painesville isn't the only town with an ordinance about yard signs. A lot of communities place restrictions on yard signs for aesthetic and safety reasons.

Since the sign in front of the law firm was up too early, the city told David Dworken, one of the partners, to take it down. But Dworken refused. So the city took the firm to curt for committing a fourth-degree misdemeanor for every day that the violation continued.

Dworken filed a motion to dismiss the complaint against his firm, claiming that the city ordinance infringed upon the firm's rights to freedom of speech under the Ohio Constitution and the First Amendment of the United States Constitution. But the trial court denied that motion, finding that regulations contained in the ordinance "are necessary to serve a compelling governmental interest." The law firm was found guilty of violating the zoning ordinance as was fined $250.

David Dworken turned to the court of appeals, asking it to consider the question of constitutionality. The court of appeals, looking only at the part of the ordinance banning yard signs seventeen days before the election, concluded that such a time limit was indeed unconstitutional. The court of appeals reversed the judgment of the trial court. Having lost at the appellate court, the city of Painesville appealed the case to us.

So, did the Painesville ordinance restrict free speech, and therefore violate the First Amendment? The First amendment to the United States Constitution states in part that "Congress shall make no law ... abridging the freedom of speech." The Painesville city council isn't Congress, but the amendment still applies.

The Ohio Constitution also protects free speech, stating that "every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of he right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press." Over the years, the United States Supreme Court has decided numerous cases regarding the First Amendment and free speech issues. It has been said that the First amendment has "its fullest and most urgent application" to speech during political campaigns, and that "communication by signs and posters is virtually pure speech."

The Supreme Court has recognized that political signs placed in residential yards or in windows have long been an "important and distinct medium of expression."

But the United States Supreme Court has never considered the issue of time limits on signs. Other courts have, and the majority of them have found ordinances that place time limits on yard signs to be unconstitutional. By a seven-to-zero vote, we did the same thing, finding the Painesville ordinance unconstitutional.

The city maintained that it had a "compelling interest in limiting the amount of time that it is subject to the psychological and economic effects produced by these signs." But the city doesn't worry about the "psychological and economic" effects of "for sale" signs or signs advertising garage sales.

Painesville further justified the ordinance based on its governmental interest in promoting aesthetic concerns, including the avoidance of visual blight. There were also traffic considerations - the city was trying to ensure unimpaired vision for motorists. Chief Justice Thomas Moyer, who wrote the court's opinion, agreed that these were legitimate concerns.

But the Painesville ordinance was too narrowly written and prohibited too much speech. Under its strict regulations, no one in the city could place a sign in their yard to express their opinion on any political matter - say, for example, impeachment of a president - unless it happened to be seventeen days before an election.

In striking down this ordinance as unconstitutional, we did allow that a more narrowly written ordinance that wasn't quite so restrictive could pass constitutional muster. Chief Justice Moyer wrote, "We believe that a regulation directed towards signs employing particular types of construction materials deemed likely to lead to production of litter or other aesthetic problems if posted for extended periods of time could be constitutional?"

Otherwise, the signs stay. They may not be as pretty as the autumn leaves, but they are a visual symbol of democracy and freedom in action

Editor's Note: The case referred to is: Painesville Bldg. Dept. V. Dworken & Bernstein Co., L.P.A. (2000), 89 Ohio St.3d 564. Case No. 99-1769. Decided September 6,2000. Majority opinion written by Chief Justice Thomas Moyer.