Michigan Advisory Opinions January 13, 2006: AGO 7185 (January 13, 2006)

AGO 7185.

You have asked two questions concerning the authority of local governments to regulate the placement of political signs on private property. First, you ask whether local governments may require a permit and impose a fee for the placement of political signs on private property. Second, you request clarification regarding size limitations that may be applied to political signs.

Both the First Amendment to the United States Constitution, US Const, Am I,(fn1) and the Michigan Constitution, Const 1963, art 1, § 5,(fn2) preserve the right of the people to free speech, including political speech. These rights are "coterminous," and thus federal authority construing the First Amendment may also be used in construing Michigan's constitutional free speech rights. City of Owosso v Pouillon , 254 Mich App 210, 214; 657 NW2d 538 (2002). See also Woodland v Michigan Citizens Lobby , 423 Mich 188, 208; 378 NW2d 337 (1985).

The issues you raise were both addressed in OAG, 1983-1984, No 6258, p 411 (November 26, 1984). OAG No 6258 sets forth the guiding legal principle that political speech is entitled to the fullest possible measure of constitutional protection, and that communication by signs and posters is a form of protected political speech. OAG No 6258 at p 412, citing 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 233 (1977), and quoting City Council v Taxpayers for Vincent , 466 US 789, 816; 104 S Ct 2118; 80 L Ed 2d 772 (1984). The opinion observed, however, that despite its protected character, courts have upheld reasonable "time, place, and manner restrictions" upon speech that are content neutral, that serve a significant governmental interest, and that leave open "ample alternative channels for communication of the information." Id ., at p 412, quoting Virginia State Bd of Pharmacy v Virginia Citizens Consumer Council , 425 US 748, 771; 96 S Ct 1817; 48 L Ed 2d 346 (1976). OAG No 6258 reviewed a number of decisions addressing restrictions upon political speech but noted that, as of 1984 when the opinion issued, the United States Supreme Court had not yet ruled upon the regulation of political signs on private, residential property. Id ., at pp 412-414.

Among the questions addressed by OAG No 6258 was whether a municipality may require that a bond be posted or insurance procured before the municipality will permit the erection of political signs on private, commercial, or industrial property. Id ., at p 417. In its analysis of this question, the opinion relied substantially on two decisions from the United States Court of Appeals for the Ninth Circuit - Baldwin, supra, and Verrilli v City of Concord , 548 F2d 262 (CA 9, 1977) - in which the Ninth Circuit struck down a permit and fee requirement and a bond requirement as "unnecessarily burdensome and arbitrary in light of the interests such regulations may properly serve." OAG No 6258 at p 417, quoting Baldwin , 540 F2d at 1372. In light of these decisions, the opinion concluded that "[a]n 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 ." Id ., at p 417 (emphasis added).

The question posed in your request regarding a permit and fee requirement is analogous to the bond question addressed in OAG No 6258 and, therefore, is subject to the same analysis and conclusion, unless any subsequent changes in the law require a different result.

Despite 20 years having passed since OAG No 6258 issued, Baldwin remains the leading and most persuasive case with respect to the posting of political signs. In Baldwin , the Ninth Circuit affirmed a lower court order declaring unconstitutional a provision of the defendant city's ordinance imposing a $1 nonrefundable inspection fee per temporary political sign, but reversed the court's decision upholding the city's permit requirement and its $5 refundable deposit for each temporary political sign.

Before reaching these issues, however, the Baldwin Court addressed a provision of the city's ordinance limiting the aggregate area of all signs allowed on behalf of a single candidate or issue to 64 square feet. 540 F2d at 1369. Because this restriction was based on the political content of the signs, it was subject to a "strict scrutiny" analysis that the City could not overcome on the basis of aesthetics, the City's primary argument. Id ., at 1369-1370. Turning to the permit and fee requirement, the Court observed:

The invalidity of the 64 square foot limitation affects the burdensomeness, and hence the constitutionality, of the preconditions Redwood City imposes upon erection of temporary signs: filing an application, paying a $1.00 inspection fee, and depositing a $5.00 removal charge, for each sign. Applied to four 16 square foot signs, the burden of compliance may be inconsequential. Applied to the number of political posters that would normally be used in supporting a candidate or issue in a community the size of Redwood City, the burden is so great as to inhibit the use of this means of communication. Moreover, each of the three requirements, when examined in light of its purpose, is unnecessarily burdensome and contains an element of arbitrariness. [ Id., at 1370-1371.]

The Court disapproved of the city's permit application form for a sign because it was overly burdensome in requiring applicants to provide or obtain certain information. Id., at 1371.

With respect to the per-sign inspection fee, the Court noted that the city provided evidence that it cost at least $10 to inspect a sign, but further observed that the only aspect of a temporary sign subject to inspection at the outset is its size, which could be verified quickly with a tape measure:

A $1.00 fee for checking the size of a single poster might be reasonable; but, as the district court held, a $500 fee for inspecting 500 identical political posters would be essentially arbitrary, bearing no relationship to the cost. The absence of apportionment suggests that the fee is not in fact reimbursement for the cost of inspection but an unconstitutional tax upon the exercise of First Amendment rights. [ Id .; footnote omitted.](fn3)

Turning to the $5 removal deposit, although the City argued that the average cost of removal was actually $25 per sign, the Court concluded that "a $5.00 removal deposit has no reasonable relationship to the cost of removing a single 50 cent political poster placed by a property owner in his front yard, and the charge is so disproportionately burdensome as to inhibit such an expression of political opinion." Id., at 1372. The Court recognized that the fee was refunded if the sign was removed, but observed that "money is most useful during a campaign." Id. The Court determined that requiring the commitment for the duration of a campaign of $5 in cash or surety for each poster erected would, "as a practical matter, preclude erection of all but a few large signs. Means less restrictive of free expression must be relied upon to serve the interests of community tidiness and aesthetics." Id. Accordingly, the Baldwin Court held that although "[i]n some circumstances a city may both require a permit for activity involving free expression without violating the First Amendment and also collect fees that fairly reflect costs incurred by the city in connection with such activity," the Redwood City ordinances were unconstitutional because they were overly burdensome and did not reasonably reflect the costs incurred as a result of the activity. Id. (footnotes omitted).

The result in Baldwin and its persuasiveness with respect to the question here is further supported by the United States Supreme Court's decision in City of Ladue v Gilleo , 512 US 43; 114 S Ct 2038; 129 L Ed 2d 36 (1994). There the Supreme Court addressed an ordinance restricting the placement of political signs on private, residential property. The City's ordinance essentially banned all signs on residential property, except for small window signs. In determining that the City of Ladue's sign ordinance amounted to an unconstitutional, outright ban regarding this form of expression, the Court observed:

Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the resident's support for particular candidates, parties, or causes. They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression. [ Id ., at 54-55; footnote omitted.]

The City of Ladue Court further noted that residential yard signs are distinctive in identifying the "speaker" of a message, which can enhance or detract from the effectiveness of the message depending upon the circumstances and the speaker. Id., at 56-57. The Court also acknowledged that "[r]esidential signs are an unusually cheap and convenient form of communication" and "may make the difference between participating and not participating in some public debate" for some individuals. Id ., at 57.

In addition to noting the historic importance of this form of expression, the Court also explained that "[a] special respect for individual liberty in the home has long been part of our culture and our law" and that "that principle has special resonance when the government seeks to constrain a person's ability to speak there." Id ., at 58 (citations omitted; emphasis in original). The Court recognized that "the government's need to mediate among various competing uses, including expressive ones, for public streets and facilities is constant and unavoidable," but that " its need to regulate temperate speech from the home is surely much less pressing ." Id. (citations omitted; emphasis added).

The City of Ladue Court's recognition of the revered status accorded political speech on private, residential property further validates the decision in Baldwin .(fn4) At least one federal court has followed City of Ladue and Baldwin in declaring a permit and fee requirement with respect to political signs unconstitutional. See Curry v Prince George's County , 33 F Supp 2d 447, 455 (D Md, 1999) ("'In some circumstances a city may both require a permit for activity involving free expression without violating the First Amendment . . . and also collect fees that fairly reflect costs incurred by the city in connection with such activity'. . . . But there is no justification for imposing such requirements in the case of campaign signs posted upon a private residence.") (citations omitted).(fn5) Research has disclosed no Michigan cases addressing the authority of local governments to regulate the placement of political signs on private, residential property under the Michigan Constitution.

It is my opinion, therefore, in answer to your first question, that municipalities may not, consistent with the First Amendment to the federal constitution, impose a permit and fee requirement with respect to political signs posted on private property.

Your second question asks whether there have been any decisions since the issuance of OAG No 6258 that "add to or further clarify the opinion" with respect to size limitations concerning political signs. OAG No 6258 addressed whether a size limitation could be placed on political signs on private property, concluding:

[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 traveling by vehicle or on foot to readily perceive the message. [ Id ., at p 419.]

This statement remains accurate under current law. Courts have upheld content-neutral size restrictions that apply to all signs equally, for example to all temporary signs, as reasonable restrictions on speech furthering government interests in aesthetics and safety. See Sugarman, 192 F Supp 2d at 295; Long Island Bd of Realtors, Inc v Village of Massapequa Park, 277 F3d 622, 628 (CA 2, 2002) ("Where a legislature's ends are aesthetics and safety, permissible means have included the regulation of the size, placement, and number of signs"); Curry , 33 F Supp 2d at 452 ("Courts have also routinely upheld regulation of signs by size and shape"). The Supreme Court in City of Ladue similarly commented that "governments may regulate the physical characteristics of signs." City of Ladue , 512 US at 48.

OAG No 6258 noted several decisions upholding certain size restrictions where they applied to all signs of the same category or class(fn6) but invalidating others.(fn7) Although your request asks for further clarification, there is no bright-line test for determining whether a size restriction is reasonable. Rather, the guiding principle a municipality must keep in mind in formulating any ordinance that regulates the size of signs, including political signs, is whether the size restriction would destroy the efficacy of the medium of expression. As noted by the Ninth Circuit in Verrilli , "[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.

It is my opinion, therefore, in answer to your second question, that a municipality may impose reasonable size restrictions with respect to all signs, including political signs, on private, residential property provided that the regulation preserves the effective exercise of First Amendment rights.

FN1. This federal constitutional provision states: "Congress shall make no law . . . abridging the freedom of speech . . . ." The right of free speech secured against federal abridgement by the First Amendment is among the fundamental personal rights and liberties secured against state abridgement by the Fourteenth Amendment to the federal constitution. Book Tower Garage, Inc v Local No 415, Int'l Union, UAWA (CIO), 295 Mich 580, 586; 295 NW 320 (1940).

FN2. This Michigan constitutional provision states: "Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press."

(fn3) The Baldwin Court's reference to "apportionment" incorporates United States Supreme Court decisions addressing fees related to First Amendment activities in the context of whether the fees were properly apportioned to the costs of the activities. See Follett v Town of McCormick , 321 US 573, 575, 576-577; 88 L Ed 938; 64 S Ct 717 (1944); Murdock v Pennsylvania , 319 US 105, 113-114; 87 L Ed 1292; 63 S Ct 870 (1943); Cox v New Hampshire , 312 US 569, 576-577; 85 L Ed 1049; 61 S Ct 762 (1941).

FN4. In a decision addressing a virtual ban on residential signs, the Sixth Circuit, too, has noted the importance accorded this form of expression. See Cleveland Area Bd of Realtors v City of Euclid , 88 F3d 382, 389 (CA 6, 1996), citing City of Ladue , supra . See also Dimas v City of Warren , 939 F Supp 554, 557-558 (ED Mich, 1996).

FN5. In Sugarman v Village of Chester, 192 F Supp 2d 282 (SD NY, 2002), although the United States District Court for the Southern District of New York invalidated a number of other sign ordinances, it affirmed a village's permit and fee requirement with respect to political signs. In a brief analysis that did not discuss the City of Ladue case, the court concluded that the ordinance was content-neutral because it applied to all temporary signs, and that it was a "reasonable time, manner and place restriction narrowly tailored to support [the village's] significant government interests in aesthetics and public safety." Id., at 293. Because the Sugarman decision did not discuss City of Ladue or Baldwin in its analysis of the permit and fee requirement, the decision is unpersuasive.

FN6. Baldwin , 540 F2d at 1369 (upholding 16-square-foot size limitation per sign, and 80-square-foot aggregate area of all temporary signs per parcel of property in one ownership); Ross v Goshi , 351 F Supp 949 (D HI, 1972) (upholding 18-square-foot size limitation).

FN7. State v Miller , 83 NJ 402; 416 A2d 821 (1980) (expressing doubt regarding validity of six-square-foot size limitation); and Verrilli , 548 F2d at 265 (rejecting four square-foot limitation).