Content Neutrality Violations Noted in Michigan

The landmark content-neutrality/prior-restraint ruling from North Olmsted is cited in Thomas Township.

The message cannot determine the medium. With modest apologies to Marshall McLuhan, when the medium is signage, the courts have bestowed kid-glove treatment upon content neutrality, while wholeheartedly endorsing the tenets of North Olmsted (see ST, December 1999, page 52, and April 2000, page 304). On July 24, 2002, Michigan U.S. District court ruled in King Enterprises v. Thomas Township Michigan that all but three of the township’s October 1999 ordinance’s 14 sections ignored the First Amendment via content-based or prior-restraint provisions.

C.T. Leasing owned a building that included a legal, nonconforming pole sign that listed the building’s tenants. One tenant left, and another moved in. C.T. changed the panel display, but didn’t get a permit to do so. The township issued a citation.

North American Signs’ (South Bend, IN) VP and legal counsel, John Yarger, discovered that plaintiffs were taking the township to court. Yarger advised plaintiff attorney Robert Miller that the ordinance’s First Amendment aspects made it suitable for federal court. Yarger then contacted Dr. R. James Claus and Prof. Alan Weinstein (currently on the FASI Board of Directors), who, with International Sign Association funding, assisted in filing for a summary judgment.

As written, the ordinance would prohibit a sign that said “Vote on November 5,” but allow a “Vote for Smith” sign. Produce grown in Thomas Township could be advertised on a sign, but not produce grown elsewhere. Businesses couldn’t post a sign saying “Congratulations, Class of 2002.”

In his ruling, Judge Lawson noted that the plaintiffs relied heavily on North Olmsted and specifically cited Judge Nugent’s comment that the North Olmsted ordinance was polluted by a “thicket of content-based distinctions and an impermissible system of prior restraint.”

A list of numerous Thomas Township violations follows, most of which thumb their noses at the First Amendment. Tear this page out and keep it near your sign-permit papers. I’ll guarantee that a majority of your towns will concoct content-based sign codes that trample the U.S. Constitution. In a nice way, you can show your city officials what not to do.

  • Section five of the ordinance defines permissible, small, off-premise signs as “freestanding sign(s) advertising the location or activities of any church or nonprofit service club or charitable organization.”
  • “Residential district” signs are defined as those that read “For Sale,” “For Rent” or “For Lease.” “Political campaign signs “announce referendum issues of candidates seeking political office and other data pertinent thereto.”
  • “Seasonal business” signs can advertise “only those items produced during the growing season.”
  • In a residential district, temporary portable signs may be used “for birthdays and other events related to the household.”
  • Signs “with moving parts” are prohibited, except for auto dealerships that use ribbons or pennants.
  • Electronic-message signs cannot change the message more often than every 20 seconds, except for time-and-temperature displays.

Content-based sign codes are subject to strict scrutiny under the 1980 Central Hudson ruling. To regulate First Amendment speech, the government must have a “substantial’ interest; the regulations must directly advance those interests, and the restrictions must be no more excessive than is necessary to carry out those objectives. Thomas Township failed miserably on all three counts.

Under the prior-restraint violations, Thomas Township hoped to stipulate:

  • “Pennant displays are allowed if a display pattern showing the color and design is submitted and approved upon temporary sign-permit request.”
  • The basic definition of a sign is somewhat based on its message: “A sign shall not include any display of official court or public-office notices.”

In reply, the Court asserts:

  • “Requiring official permission to change a sign’s message is disturbingly suggestive of authority to sanction the message itself. The ordinance contains no language to assuage that concern.”
  • The federal court also notes that the ordinance’s permit process errs in two grievous manners, “It does not indicate a time period for the building inspector to grant or deny an application for a sign permit. In addition, neither the ordinance nor the variance procedures provide for ‘prompt judicial review.’ The conclusion is unavoidable, therefore, that the permit section of the ordinance constitutes an unconstitutional prior restraint of protected speech and may not be enforced.”

In the short term, Thomas Township’s Constitutional cluelessness helps establish precedent, just like North Olmsted. Additionally, however, anti-sign advocates may become smarter and figure out ways to legally undermine commerce through legally upheld restrictions, hurting all businesses uniformly.

Thomas Township has not appealed the decision, and plaintiffs are seeking $56,000 in attorneys fees.

Posted in 1st Ammendment / Freedom of Speech, Blog: Rhetorical, Content Neutrality (Reed v. Gilbert), Sign Codes, Supreme Court, Temporary Signs.