Cities Across the Nation Continue to Violate the First Amendment and Property Rights

by Adi Dynar
March 16, 2018

This week, the Goldwater Institute had filed an amicus brief in a case to determine whether a sign’s content should affect where it can be placed.

In San Francisco (like hundreds of cities across the nation), the Planning Code limits where commercial signs can be placed. But noncommercial signs are exempt from the code. Thus, whether a sign is commercial or noncommercial is left to the guesswork of code enforcement officers. It requires an enforcement officer to (1) read the sign, (2) investigate both the “primary” and “incidental” activities conducted on the premises, and (3) investigate property ownership near the sign—all to determine whether a particular sign is permitted or banned. This regulatory patchwork means that, as shown in the table below, two of the six types of signs are completely banned. In its brief, the Goldwater Institute argues that these commercial–noncommercial, onsite–offsite, and primary–incidental activity distinctions break the First Amendment’s promise to all that government will not interfere with people’s freedom of speech.

In other words, only (1) a sign that displays a commercial message that calls the reader’s attention to an offsite activity (commercial or noncommercial), or (2) a sign that displays a commercial message that calls the reader’s attention to an onsite activity (commercial or noncommercial) that is incidental, are prohibited under the Planning Code.

Are you confused? We are too. But let’s try to make sense of the Planning Code as written. Consider the following three signs. Depending on an enforcement officer’s implicit or assumed value judgments, these signs readily fall under the two shaded boxes, in which case the signs are banned, or the remaining four boxes, in which case they are permitted.

1. “Veterans: Buy One Shirt Get One Free ←” portable sign on the sidewalk by a tailor shop.

Let’s assume this is a commercial message. Is this a banned commercial message? Maybe. The sign says “Veterans.” If the discount offer is directed only to veterans, does the sign relate to the primary activity or merely an incidental activity of the tailor shop? From another angle, is offering discounts the primary or incidental activity of the tailor shop? If the sign is read as applicable only to veterans, or only to discounts, then it refers to an incidental activity, which means it is prohibited by the Planning Code. But if the sign is read as relating to shirts, then shirt-making or shirt-selling is the primary activity of the tailor shop, which means the sign is permitted.

Or our initial assumption may be faulty—why is this a commercial message? The sign offers discounts to veterans. A sign conveying that the tailor takes the financial well-being of veterans seriously, or respects American veterans, is a noncommercial message, in which case the sign is freely permitted.

2. “I ♥ Planned Parenthood” decal on the door of an arts-and-crafts store.

Let’s assume this is a noncommercial message. Perhaps the store’s owner feels strongly about this message. Or the store owner may have wanted to monetize the value of her storefront by renting out window space to advertise a message she feels deeply about (does this make it a commercial message?). Or she may have given that space to another speaker for free for any number of reasons: She may personally identify with the message, she may think it enhances the value of the products or services she offers for sale, or she may want to be personally identified with a particular message even if such association harms her business.

Not so fast. What if the arts-and-crafts store sells printed pillows, T-shirts, mugs, etc. with the “I ♥ Planned Parenthood” message? If this is the case, the sign transforms into a commercial message relating to an onsite primary activity (which is allowed), or relating to an onsite incidental activity (which is prohibited).

3. “Ask Me How Guns Save Lives #Parkland Strong” plaque displayed in the window of a bookstore.

This may appear to be a noncommercial message. But it could also be an inducement for people to enter the shop and voice approval or disapproval. The bookstore owner could view this as good for business. If the latter, this is expression related solely to the economic interests of the speaker, which makes it a commercial message. Or it could be a sign relating to an offsite activity (which is prohibited if it conveys a commercial message)—say, if the bookstore owner or her family owns a gun range where they provide education and training about gun safety.

Our enforcement officer, encountering any of these signs, has no option but to read the sign and interview the store owner or representative to determine the speaker’s motive—both of which the Supreme Court has said the enforcement officer is not allowed to do. The Planning Code, therefore, flunks under the First Amendment. It protects us all from precisely this sort of government inquiry and the pervasive chilling effect on speech that sign-code provisions like San Francisco’s have on freedom of speech.

In addition to the weighty First Amendment concerns, another important principle is at play: the right to property. If our bookstore owner, or arts-and-crafts store owner, wishes to rent out or provide their storefront window space for someone else’s signs, that is their right. And if such private property owners do not want to open up their property for someone else’s speech, that is also their right. People are free to convey their own or someone else’s commercial or noncommercial messages.

A few state courts have adopted this property-rights approach in the context of freedom of speech. In an Arizona case, Fiesta Mall Venture v. Mecham Recall Committee, the court followed this approach to conclude that a mall owner has the right to exclude a recall committee from soliciting signatures on private property. The converse is also true: Nothing precludes such a property owner from opening up her private property for someone else’s speech. In its brief to the Supreme Court, the Goldwater Institute urged the Court to take the case and reaffirm these enduring principles of freedom of speech and property rights.

The Goldwater Institute has been involved in several similar free speech cases in the past. Back in 2016, the Institute released a paper on the Reed v. Town of Gilbert decision. Unfortunately, in the wake of that decision, Arizona municipalities have either failed to revise their sign codes in accordance with Reed, or have failed to do so properly—and the Institute has worked to make sure that the law is properly enforced.

Adi Dynar is a Staff Attorney at the Goldwater Institute.