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Tim Myers: City’s sign ordinance supresses free speech

Myers' Musings

Posted: February 20, 2011 1:55 a.m.
Updated: February 20, 2011 1:55 a.m.
 

Back to constitutional law class: When understanding the power to regulate rights enumerated under the U.S. Constitution, consider the difference between “fundamental” and “nonfundamental” rights. For a government entity to regulate a nonfundamental right, it must merely show a rational relationship between the regulation and the governmental interest.

In the case of a fundamental right, however, the governmental entity must show a more substantive and direct relationship.

The best recent example: The federal lawsuit to overturn Proposition 8. Marriage constitutes a fundamental right. In order to deny marriage to gay men and women, the government must show a substantive harm against which they are trying to protect, not just that some majority finds it gross.

Lesson No. 2: One must possess “standing” to sue in federal court. In other words, one must demonstrate actual harm to themselves from a government action. Again, the litigation concerning Proposition 8 provides instruction. One cannot demonstrate standing just because they find gay marriage gross.

And in these two lessons, I find the pure genius in the new Santa Clarita sign ordinance: The City Council managed to suppress the fundamental right of political speech without creating a plaintiff who can assert standing to maintain a constitutional lawsuit challenging the ordinance.

In my opinion, and the opinion of anyone who can properly read a constitutional law book, the ordinance constitutes an unconstitutional restraint on political speech, a fundamental right. The ordinance prohibits candidates from placing their temporary campaign signs in the public right of way based on a bogus claim of traffic safety. 

Since political speech constitutes a fundamental right, the city cannot just assert the possibility that traffic carnage might result from sign distraction. The city would need to produce actual longitudinal, statistically rigorous data that would provide substantive evidence of a substantial uptick in traffic accidents due to campaign sign distraction.

I do not place myself out on a limb when I say that elections that happen every two years over about a 10-week period could never produce such evidence.

So how can the sign ordinance withstand litigation? The unlikelihood of producing a plaintiff with actual standing, supported by the actual operation of the sign ordinance. Genius!

How will the sign ordinance operate? No one will stop a candidate or their volunteers from placing a sign. (This would constitute a “prior restraint” on political speech that would quickly collapse by producing a plaintiff suffering actual harm by arrest or detention.)

Instead, city workers or subcontractors will range the city picking up and storing any signs they find to violate the ordinance. Candidates will only incur an actual fine if they go to retrieve their signs from the city based on the following schedule: $50 to retrieve all the signs on a first offense. $100 to retrieve each sign on a second offense and $250 to retrieve each sign for a third offense.

Now, while the second and third fines sound very stiff, remember the operative term: To retrieve. A candidate will only incur the fine if they go to the city and ask for the signs back, and this will not likely occur for two reasons.

First, the candidate must feel confident that city workers or contractors took the signs. I know at least one candidate for local office who claimed that hundreds of his campaign signs disappeared each and every night between the hours of 10 p.m. and 6 a.m. They did not disappear at the hands of city workers but rather at the hands of locals who, while certainly not voting in local elections, enjoy the soft vandalism of pulling up campaign signs and throwing them in the ditch.

Second, it seems hardly worthwhile to bother retrieving the signs, even the first time and definitely not the second or third.

Once someone completes a print run of the standard temporary campaign sign, one can certainly produce an incremental sign for less than $100 or $250, and probably even less than the $50 to retrieve maybe 10 signs actually taken up by the city when compared to the hundreds taken by ordinary vandals.

And so the city produces an unconstitutional ordinance that will not produce a viable plaintiff to challenge constitutionality. And we know who hardly ever utilizes signs when running in the local elections and will never find themselves subject to a fine: Incumbents!

Tim Myers is a Valencia resident. His column reflects his own views and not necessarily those of The Signal. “Myers’ Musings” appears Sundays in The Signal.

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