STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6258

November 26, 1984

CONSTITUTIONAL LAW:

US Const, Am I and Const 1963, art 1, Sec. 5--freedom of speech protection for political campaign signs placed on private property

ELECTIONS:

Restriction upon placement of political campaign signs upon private property

MUNICIPALITIES:

Ordinance placing restrictions upon placement of political campaign signs placed on private property

Political campaign signs are a form of speech protected by US Const, Am I and Const 1963, art 1, Sec. 5.

The posting of political campaign signs on private property may not be limited by a municipality to a specified number of days preceding an election.

A municipality may require that political campaign signs be removed in not less than 10 days after a general or special election.

A municipality may not require that a bond be posted or insurance procured as a prerequisite for erecting political campaign signs on private, commercial or industrial property.

A candidate or other campaign committee may not be required by a municipality to attend a specific meeting staged by the municipality devoted to legal responsibilities in connection with the erection of political campaign signs on private property.

A municipality may not require a candidate or other campaign committee to furnish a list of addresses where political campaign signs are to be located.

A municipality may reasonably regulate the size of political campaign signs on private property, provided that it does so in a manner that preserves the efficacy of the medium, and also provided that the sign is of sufficient dimension to enable a person travelling by vehicle or on foot to readily perceive the message.

A municipality may not require that written permission from the owner of property be obtained as a condition precedent to the posting of political campaign signs on private property.

Honorable Curtis Hertel

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion with respect to seven questions relating to the authority of a municipality to regulate or restrict the placement of political campaign signs on private property. Each question will be considered and addressed in turn, following a review of the relevant principles of law involved.

Although not absolutely protected, '[The First Amendment embodies our] profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open. . . .' New York Times Co v Sullivan, 376 US 254, 270; 84 S Ct 710, 721; 11 L Ed 2d 686, 701 (1964). Garrison v Louisiana, 379 US 64; 85 S Ct 209; 13 L Ed 2d 125 (1964). State v Miller, 83 NJ 402; 416 A2d 821 (1980); Van v Travel Information Council, 52 Ore App 399; 628 P2d 1217 (1981).

In the context of a review of a total municipal ban upon placement of political signs upon public property, the United States Supreme Court acknowledged that 'political speech is entitled to the fullest possible measure of constitutional protection.' City Council v Taxpayers for Vincent, ---- US at ----; 104 S Ct 2118, 2135; 80 L Ed 2d 772, 794 (1984).

In addition, communication by signs and posters is a form of speech. A candidate or other campaign committee who use posters and signs in political campaigning are entitled to the fullest measure of constitutional protection. Baldwin v Redwood City, 540 F2d 1360 (CA 9, 1976), cert den, sub nom Leipzig v Baldwin, 431 US 913; 97 S Ct 2173; 53 L Ed 2d 223 (1977); State v Miller, supra; Van v Travel Information Council, supra.

Despite its protected character, the Court has upheld reasonable time, place and manner restrictions upon speech. Kovacs v Cooper, 336 US 77; 69 S Ct 448; 93 L Ed 513 (1948); Police Dep't of Chicago v Mosley, 408 US 92; 92 S Ct 2286; 33 L Ed 2d 212 (1972); Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972); Heffron v Int'l Soc for Krishna Consciousness, Inc, 452 US 640; 101 S Ct 2559; 69 L Ed 2d 298 (1981); Metromedia, Inc v City of San Diego, 453 US 490; 101 S Ct 2882; 69 L Ed 2d 800 (1981); City Council v Taxpayers for Vincent, supra.

The Court, in Linmark Associates, Inc v Willingboro, 431 US 85, 93; 97 S Ct 1614, 1618; 52 L Ed 2d 155, 162 (1977), concluded that 'laws regulating the time, place, or manner of speech stand on a different footing from laws prohibiting speech altogether.'

Time, place and manner restrictions must meet the test succinctly stated in Virginia State Bd of Pharmacy v Virginia Citizens Consumer Council, 425 US 748, 771; 96 S Ct 1817, 1830; 48 L Ed 2d 346, 364 (1976):

Moreover, the Court has emphasized the requirement that any encroachment upon speech must be no greater than is essential to the furtherance of the state interest. US v O'Brien, 391 US 367; 88 S Ct 1673; 20 L Ed 2d 672, reh den, 393 US 900; 89 S Ct 63; 21 L Ed 2d 188 (1968), Police Dep't of Chicago v Mosley, supra; Grayned v City of Rockford, supra.

Notwithstanding these general requirements, the United States Supreme Court and several state courts have upheld restrictions upon speech that discriminated according to content. In Lehman v City of Shaker Heights, 418 US 298; 94 S Ct 2714; 41 L Ed 2d 770 (1974), the city banned the placement of political signs in the view of passengers riding on the public rapid transit system, although other signs were accepted. In a plurality decision, the Court upheld the ordinance, finding in part, that public transportation is not a public forum and that petitioners had no right to impress their views on public transit commuters who, because of necessity, are a captive audience.

In Greer v Spock, 424 US 828; 96 S Ct 1211; 47 L Ed 2d 505 (1976), respondents were denied the right of access to a military post to hold a political rally without prior written approval, since the post was not a public forum where persons have a right to deliver partisan political speeches. The Court upheld the ban. ⁽¹⁾

Although neither case has been expressly overruled, the two were distinguished in Consolidated Edison Co of New York, Inc v Public Service Comm'n of New York, 447 US 530; 100 S Ct 2326; 65 L Ed 2d 319 (1980). The Court struck down an order of the state public service commission barring utilities from inserting public policy statements in billing envelopes as violative of free speech. The Court noted that: 'Greer and Lehman properly are viewed as narrow exceptions to the general prohibition against subject matter distinctions [in speech].' 447 US at 539; 100 S Ct at 2334; 65 L Ed 2d at 329. The Court concluded: 'Therefore, a constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech.' 447 US at 536; 100 S Ct at 2333; 65 L Ed 2d at 327.

In Erznoznik v City of Jacksonville, 422 US 205; 95 S Ct 2268; 45 L Ed 2d 125 (1975), the Court recognized the very narrow circumstances in which content discrimination was permissible, and similarly distinguished Lehman as involving a captive audience. ⁽²⁾ The Court concluded that 'the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content.' 422 US at 212; 95 S Ct at 2274; 45 L Ed at 132. Should one, as an unwilling viewer, become offended by the particular form of expression, the Court reiterated the advice of Cohen v California, 403 US 15; 91 S Ct 1780; 29 L Ed 2d 284 (1971), that stated, "[those affected could] avoid further bombardment of [their] sensibilities simply by averting [their] eyes." 422 US at 211; 95 S Ct at 2273; 35 L Ed 2d at 132.

Research reveals only two state courts that have upheld the regulation of signs on the basis of content, namely, Donnelly Advertising Corp of Maryland v Mayor and City Council of Baltimore, 279 Md 660; 370 A2d 1127 (1977), which upheld as presumptively constitutional an ordinance requiring the removal of all signs other than those identifying the premises from the oldtown urban renewal area, and State v Lotze, 92 Wash 2d 52; 593 P2d 811, appeal dismissed for want of a substantial federal question, 444 US 921; 100 S Ct 257; 62 L Ed 2d 177 (1979), which upheld a statute prohibiting billboards conveying political or social messages, but permitting on-premise business signs and realty 'for sale' signs. In Metromedia, supra, 453 US at 513-514, fn 18; 101 S Ct at 2895-2896; 69 L Ed 2d at 818, the decision in Donnelly Advertising Corp of Maryland, supra, was criticized, while the Lotze decision was overruled to the extent it conflicted with that decision.

The United States Supreme Court has not ruled upon the regulation of the placement of political signs on private property. The Attorney General, however, was presented the question. In OAG, 1973-1974, No 4777, p 27 (May 7, 1973), relying upon Peltz, supra, it was concluded that a city ordinance prohibiting the placement of temporary political signs within a city was unconstitutional as violative of freedom of speech guaranteed by US Const, Am I and Const 1963, art 1, Sec. 5. A zoning ordinance of a city which banned political signs on private property was considered in 2 OAG, 1958, No 3004, p 274, 275 (October 20, 1958). The opinion concluded:

See also, Norate Corp, Inc v Zoning Bd of Adjustment of Upper Moreland Twp, 417 Pa 397; 207 A2d 890 (1965).

In City Council v Taxpayers for Vincent, supra, the Court upheld a ban of all signs (including political signs) on public property. The Court held that the ordinance served a significant and legitimate state interest, that it was content neutral, that it left adequate alternative means of communication, and that it was no more restrictive than necessary to advance the public interest. More importantly, the Court emphasized the fact that the private homeowner's right to place signs on his or her property was preserved:

Thus, the Court intimated that under normal circumstances, the placement of signs on private property will be a self-regulating process.

Statutes and ordinances that completely ban political signs have been uniformly struck down by the courts as violative of the First Amendment guarantee of free speech. Baldwin v Redwood City, supra,--total ban in residential areas; Aiona v Pai, 516 F2d 892 (CA 9, 1975)--total ban; City of Lakewood v Colfax Unlimited Ass'n, Inc, 634 P2d 52, 61-63 (Colo banc, 1981)--total ban on residential, agricultural and conservation district properties; State v Miller, supra,--total ban on residential property; Peltz v City of South Euclid, 11 Ohio St 2d 128; 228 NE2d 320(1967)--total ban; and People v Middlemark, 100 Misc 2d 760; 420 NYS 2d 151 (1979)--total ban of freestanding political signs.

It is noted that a State of New York trial court, in Gibbons v O'Reilly, 44 Misc 2d 353; 253 NYS2d 731 (1964), upheld a village ordinance barring political billboards in single family residential districts against a First Amendment challenge, citing only People v Stover, 12 NY2d 462; 191 NE2d 272 (1963), which upheld, as a reasonable exercise of the police power, a city ordinance prohibiting the maintenance of clothes lines in the front or side yard of a residence as a form of protest against a claim of violation of the First Amendment.

It is also to be noted that in Michigan, a zoning regulatory ordinance dealing with political signs may not be based solely or predominantly on aesthetic considerations. See, Wolverine Sign Works v City of Bloomfield Hills, 279 Mich 205; 271 NW 823 (1937); Senefsky v Huntington Woods, 307 Mich 728; 12 NW2d 387 (1943); OAG, 1981-1982, No 5936, p 259 (July 24, 1981).

Against the foregoing background, your questions will now be discussed. Your first question is:

Research reveals two lines of cases which address this issue. The majority have declared unconstitutional restrictions that limit the erection of political campaign signs to a specified time preceding an election.

In City of Antioch v Candidates' Outdoor Graphic Service, 557 F Supp 52 (ND Cal, 1982), the court struck down an ordinance restricting the placement of political signs to a period of 60 days before an election. Embracing the general test of reasonableness for time, place and manner restrictions, discussed above, the court concluded that the time restriction there involved was not reasonable. Although the court found the interest significant, limiting political campaign signs to 60 days without similar limitation on other types of signs was held to be a fatal selective exclusion based on content. Citing Linmark Associates, Inc v Willingboro, supra, the court stated:

Thus, the court concluded that sixty days is not enough time to accommodate the public interest in being informed about an upcoming election.

The Federal District Court in Orazio v Town of North Hempstead, 426 F Supp 1144 (ED NY, 1977), struck down an ordinance limiting placement of political signs to six weeks preceding an election. The court analyzed the ordinance in light of Police Dep't of Chicago v Mosley, et al, distinguished Lehman v City of Shaker Heights, supra, and concluded that 'no time limit on the display of pre-election political signs is constitutionally permissible under the First Amendment.' 426 F Supp at 1149.

In Van v Travel Information Council, supra, the court, citing Orazio v Town of North Hempstead, supra, found invalid an administrative rule that imposed a limitation on the posting of political signs on land adjoining state highways to 60 days preceding an election. It held that the limitation imposed an impermissible restriction upon political speech, emphasizing that there were no adequate alternatives to small, easily mobile, political signs. Quoting from Baldwin v Redwood City, supra, the court agreed that because "means of political communication are not entirely fungible, political posters have unique advantages." 628 P2d at 1226.

Research discloses that only three cases have upheld time restrictions on political signs, two of which contain limitations of 60 days preceding an election. These cases are Baldwin v Redwood City, supra, and Ross v Goshi, 351 F Supp 949 (DC HI, 1972). In both, the court concluded that a 60-day limitation on political signs was reasonable, following the foregoing analysis.

In the third case, namely, Town of Huntington v Estate of Schwartz, 63 Misc 2d 836; 313 NYS2d 918 (1970), a New York trial court approved of a 42 day time limitation upon temporary political signs. This decision was, however, later criticized in People v Middlemark, supra, 420 NYS 2d at 152-153.

To test the reasonableness of either a 42-day or 60-day time limitation upon the placement of political signs on private property prior to an election, it is necessary to examine the provisions of the Michigan Election Law, 1954 PA 116; MCLA 168.1 et seq; MSA 6.1001 et seq. Using the general election for the office of state representative as an example, the candidates for such office are nominated at a primary election held on the Tuesday succeeding the first Monday in August, 1954 PA 116, supra, Sec. 162. A representative is elected from each representative district at each general November election, 1954 PA 116, supra, Sec. 170, held on the first Tuesday after the first Monday of November in every even-numbered year. 1954 PA 116, supra, Sec. 3. The general election for the current office of State Representative will be held on November 6, 1984. The period between the August 7, 1984 primary election and the November 6, 1984 general election is 90 days. Were the 42-day standard to be used, political campaign signs would be permitted for less than half of the election campaign period, and if the 60-day period were to be followed, the signs could be posted for roughly two-thirds of the election campaign period. Neither limitation, as so applied, is reasonable. It is submitted that the better rule is the majority rule, namely, that any time limitation upon the posting of political campaign signs on private property is proscribed by the First Amendment.

It is my opinion, therefore, that political campaign signs are a form of speech protected by US Const, Am I and Const 1963, art 1, Sec. 5. It is my further opinion that a municipality may not, without violating the same, limit the posting of such signs on private property to a specified number of days preceding an election.

Your second question is:

Of the four jurisdictions which have considered this issue, only three have actually addressed it.

In Baldwin v Redwood City, supra, an ordinance requiring removal of political signs within 10 days following an election was sustained. Similarly, in Ross v Goshi, supra, the court upheld a 10-day time period for removal as reasonable. In Town of Huntington, supra, a New York trial court upheld a 48-hour requirement. This short limitation, however, is not a reasonable time for a candidate or other campaign committee to remove the signs. In Van, supra, the court had a 30-day removal requirement before it, but struck down the whole ordinance because of the provision limiting the placement of signs before the election.

As the foregoing cases suggest, 10 days following a general or special election would appear to be a reasonable time requirement for the removal of political campaign signs. After a general election, the efficacy of the signs is nil. Any heated debate over issues, was resolved by the vote of the electors. Moreover, any need to become acquainted with the candidates is finished. As noted by the Ninth Circuit Court in Baldwin v Redwood City, supra, '[a]fter an election is over, the First Amendment interest in political signs is minimal at most.' 540 F2d at 1375. As such, the public interest in safety at that point has presumably risen to the level that such considerations outweigh the First Amendment encroachment.

It is my opinion, therefore, that a municipality may require that political campaign signs be removed not less than 10 days after a general or special election.

Your third question is:

In Murdock v Pennsylvania, 319 US 105; 63 S Ct 870; 87 L Ed 1292 (1943), the Court struck down a licensing and permit arrangement imposed on a religious group that canvassed door to door. The Court held:

Requiring an individual to post a bond or pay a licensing fee is order to post a political sign on private property is the type of burden upon speech that Murdock, supra, sought to redress. Recognizing this principle, at least three courts have struck down such restrictions.

The Ninth Circuit Court of Appeals has, on two occasions, struck down ordinances containing bonding or fee requirements for the placement of political signs. The first, Baldwin v Redwood City, supra, struck down a $5.00 removal deposit and $1.00 inspection fee for each political sign, noting that, '[these] regulations adopted by Redwood City are unnecessarily burdensome and arbitrary in light of the interests such regulations may properly serve.' 540 F2d at 1372. The second, Verrilli v City of Concord, 548 F2d 262 (CA 9, 1977), struck down a $100.00 cash bond requirement for the posting of political signs in order to ensure removal of the signs. Similarly, the court in Middlemark, supra, invalidated an ordinance calling for registration and posting of a $1,000.00 performance bond for political signs. The court noted that: 'The mere presence of such permit fees places a chilling effect on the expression of political opinion.' 420 NYS 2d at 154.

Only one case, Town of Huntington v Estate of Schwartz, supra, upheld a permit requirement for political signs. This decision, however, was criticized in Middlemark, supra.

An ordinance that requires the posting of a bond or the procurement of insurance as a condition precedent to securing a permit to post political campaign signs on private property is unnecessarily burdensome and places a chilling effect on the constitutionally protected right of political expression.

It is my opinion, therefore, that a municipality may not require that a bond be posted or that insurance be procured as a prerequisite for the placement of political campaign signs on private, commercial or industrial property.

Your fourth question is:

Compulsory attendance at special meetings concerning the erection of political campaign signs is a type of burden the First Amendment is designed to prevent.

Advocates of political speech are singled out and compelled to comply with a law based on speech content as expressed in political campaign signs posted on private property. In such venture, the city is engaging in content discrimination which was consistently been declared void. City Council v Taxpayers for Vincent, supra; Heffron v Int'l Soc for Krishna Consciousness, Inc, supra; Police Dep't of Chicago v Mosley, supra; Grayned v City of Rockford, supra.

Moreover, requiring political advocates to attend meetings staged by the municipality for the purpose of enlightening them with respect to prohibitions of the law is to accomplish no more than what each citizen is already charged with knowing, namely, one's legal responsibilities.

It is my opinion, therefore, that a candidate or other campaign committee may not be required to attend a meeting staged by the municipality devoted to legal responsibilities in connection with the erection of political campaign signs on private property.

Your fifth question is:

In light of the foregoing analyses, any requirement for the listing of the addresses where political campaign signs will be placed, while imposing no similar restriction on any other kind of sign, is the kind of disparate treatment courts have held violative of the equal protection principle. Police Dep't of Chicago v Mosley, supra; Linmark Associates v Willingboro, supra; Grayned v City of Rockford, supra; City Council v Taxpayers for Vincent, supra. An ordinance requirement such as this is unduly burdensome in an area of speech where it should be the least restrictive.

Moreover, requiring political advocates to list the addresses where individual signs will be placed is unnecessarily burdensome in light of the interest served. A requirement of this type would likely have a stultifying effect upon an area of political speech, where such burdens should be at a minimum. City Council v Taxpayers for Vincent, supra; New York Times Co v Sullivan, supra; Garrison v Louisiana, supra; Baldwin v Redwood City, supra; State v Miller, supra; Van v Travel Information Council, supra.

It is my opinion, therefore, that a municipality may not require a candidate or other campaign committee to furnish a list of addresses where the political campaign signs will be located.

Your sixth question is:

Provided that the restriction on the size of political campaign signs applies to all signs generally, there is nothing offensive with this regulation. If the size limitation were to apply only to political signs, it would fall within the prohibition against disparate, discriminatory treatment in violation of the Equal Protection Clauses of US Const, Am XIV and Const 1963, art 1, Sec. 2.

In Baldwin v Redwood City, supra, while excising other portions of the ordinance, the court approved the size limitations on temporary, political signs. The ordinance provided that no one sign may be greater than sixteen square feet, and that the aggregate for any one parcel of land was limited to eighty square feet. In the face of a First Amendment challenge, the court sustained the ordinance:

In Ross v Goshi, supra, similar reasoning upheld an eighteen square feet limitation on all signs.

It is also noted that in State v Miller, supra, although the court struck down the ordinance on other grounds, a six square foot limitation was considered. The court admonished that:

The court concluded that a six-square-foot limitation would probably be unreasonable.

Thus, a municipality may not impose a size restriction on political campaign signs, the result of which would destroy the efficacy of the medium. In Verrilli v City of Concord, supra, the court noted that '[limitations are permissible] as long as the . . . limitations are not so restrictive as to foreclose an effective exercise of First Amendment rights.' 548 F2d at 265. From this, the court concluded that a four square foot limitation per sign was unconstitutional.

It is noted that in Levy v City of Pontiac, 331 Mich 100; 49 NW2d 80 (1951), the court struck down as unconstitutional under the Due Process Clause of US Const, Am XIV and Const 1908, art 2, Sec. 5, a city ordinance restricting commercial signs, not misleading or fraudulent, advertising gasoline prices, to no more than 12 X 12 inches in size.

Finally, in the event that the municipality lists traffic safety as an interest upon which the size restriction is advanced, the language of Baldwin v Redwood City, supra, is apposite: 'Considering the universe of distractions that face motorists on our streets, temporary political posters are not sufficiently significant to justify so serious (size limitation) a restriction upon political expression.' 540 F2d at 1370. The court observed further, that less restrictive means were available, citing another city ordinance that prohibited the erection of all signs that may obstruct the vision of drivers or interfere with traffic.

Thus, a municipality may protect the public safety by an appropriate ordinance prohibiting all signs which obstruct the vision of motorists at intersections.

It is my opinion, therefore, that a municipality may reasonably regulate the size of political campaign signs on private property, provided that it regulates all signs, and does so in a manner that preserves the efficacy of the medium so that the political sign may be of sufficient dimension to enable a person travelling by vehicle or on foot to readily perceive the message.

Your last question is:

For the reasons delineated in response to question three, supra, this requirement must fall. On its face, this requirement is the type that was found to be impermissibly burdensome and was struck down in Murdock v Pennsylvania, supra, because it results in disparate, discriminatory treatment of political speech violative of the Equal Protection Clause. See discussions in response to questions three and four.

Further, a requirement such as this is an unnecessary time, place or manner restriction and is answered by the comment of the Court in City Council v Taxpayers for Vincent, supra, ---- US at ----; 104 S Ct at 2132; 80 L Ed 2d at 791, that 'private property owners' esthetic concerns will keep the posting of signs on their property within reasonable bounds.'

It is my opinion, therefore, that a municipality may not require that written permission be obtained from the owner of property and filed with the municipality as a condition precedent to the posting of political campaign signs on private property.

In summary, it is my opinion that:

1. Political campaign signs are a form of speech protected by US Const, Am I and Const 1963, art 1, Sec. 5. The posting of political campaign signs on private property may not be limited by a municipality to a specified number of days preceding an election.

2. A municipality may require that political campaign signs be removed in not less than 10 days after a general or special election.

3. A municipality may not require that a bond be posted or insurance procured as a prerequisite for erecting political campaign signs on private, commercial or industrial property.

4. A candidate or other campaign committee may not be required by a municipality to attend a specific meeting staged by the municipality devoted to legal responsibilities in connection with the erection of political campaign signs on private property.

5. A municipality may not require a candidate or other campaign committee to furnish a list of addresses where political campaign signs are to be located.

6. A municipality may reasonably regulate the size of political campaign signs on private property, provided that it does so in a manner that preserves the efficacy of the medium, and also provided that the sign is of sufficient dimension to enable a person travelling by vehicle or on foot to readily perceive the message.

7. A municipality may not require that written permission from the owner of property be obtained as a condition precedent to the posting of political campaign signs on private property.

Frank J. Kelley