New Turf for Lawn Sign Wars: Free Speech and the Limitation on Candidate Lawn Signs

Carly Johnson is an Articles Editor for Volume 47 of the Mitchell Hamline Law Review and a third-year law student at Mitchell-Hamline School of Law.

Introduction

There is an old adage in campaign politics that “lawn signs do not vote, people do.”1 But the signs, and people behind them, can act as an introduction to a candidate and as a signal that there is a level of community trust and support for the candidate. Signs, and the corresponding support, can signal that the candidate should not be underestimated, which can be a powerful fundraising tool for local races. It can also be a motivational tool for candidates, a confidence booster, a reminder that there are people supporting them in the community and a form of encouragement to continue the long work of a political campaign. For these reasons, lawn signs have increased in popularity in recent years, nearly quadrupling in usage since 1984.2

Candidate lawn signs3— lawn signs displaying the candidate’s name—can be especially important in local (state legislature, municipal, school board, or county) races where candidates tend to have lower name recognition than their up-ticket counterparts.4 Name recognition is important since voters are more likely to vote for candidates with familiar names.5 Outside of local races, candidate lawn signs tend to be viewed as ineffective at swaying voters,6 nevertheless they are often used because they communicate a message by the person erecting the sign.7 Therefore, signs may be more important to the person expressing one’s support and values than the actual candidate.

While candidates and campaigns debate the usefulness of candidate lawn signs, state and local governments have acted to limit the number, size, and location of lawn signs, and the period in which they can be placed on private properties. Many municipalities across the country8 have taken such action, arguing the lack of candidate lawn signs enhances the appearance of the city, avoids blocked views, and prevents vandalism, litter, and distracted driving.9

However, the regulations may be on questionable legal ground since political signs are protected under the First Amendment and restrictions on them are viewed as content-based if not carefully drafted. While the Minnesota legislature and local municipalities attempt to regulate political speech through sign ordinances, such regulations raise grave First Amendment concerns. While many believe political bodies should not regulate campaign signs, misconceptions remain about what regulations are allowed regardless of First Amendment protections.10

Legal Limitations of Regulating Lawn Signs

The First Amendment protects most speech—but especially political speech—from regulations that are deemed to infringe upon the right to free speech.11 Political speech is the highest form of protected speech because it is viewed as the truest form of speech.12 It was also the type of speech that the founding fathers most feared would be infringed. This protection includes not only spoken speech but also symbolic and written speech, like that found on a lawn sign.13 Legislative bodies, including state and local governments, may curtail speech—even political speech—but they must meet the corresponding burden of proof.14

A legislative body may curtail speech if the regulation is content-neutral and is in the form of a time, place, or manner restriction that serves an important governmental interest.15 If the regulation is based on the content of the speech, then the legislative body must meet the strict scrutiny standard, requiring a compelling government interest and that the regulation is necessary and narrowly tailored to match the interest.16 However, both options are particularly challenging when reviewing political or candidate lawn signs when the placement of the sign is on someone’s private property, where First Amendment rights are most protected,17 and in light of an Eighth Circuit Court of Appeals decision which found restricting lawn signs to a limited period before and after an election unconstitutional.18

Minnesota Municipal Policies & The First Amendment

Regulations on political and candidate lawn signs at the state level have led to a proliferation of municipal policies across the state limiting the number, size, location, and the period in which signs may be placed in residential properties. While some municipalities are specific and call the signs “election,” “political,” or “campaign” signs,19 others are more vague, calling the signs “non-commercial speech signs.”20 Both specific and vague policies alike raise First Amendment free speech concerns.

  Regulations on the freedom of speech can be permissible if they are content-neutral in time, place, or manner restrictions that serve an important government interest.21 However, lawn sign regulations face an uphill battle since the Supreme Court decided Reed v. Town of Gilbert,22 which set the precedent that all sign ordinances restricting speech are presumed to be unconstitutional if a regulation is specifically targeted at “election,” “political,” or “campaign” signs. Such ordinances are not content-neutral since they apply only to political content and no other types of speech.23

  The controlling case on political lawn sign regulations in Minnesota is Whitton v. City of Gladstone,24 an Eighth Circuit case decided in 1995. The case struck down a municipality’s durational limits on political lawn signs that limited political sign placement to no more than 30 days before an election or 7 days after an election as an unconstitutional content-based restriction on speech.25

  The court in Whitton did note that the Supreme Court has acknowledged the problem of campaign lawn signs and their unique interaction with a municipality’s police powers that make it distinct from pure oral speech. Lawn signs take up space, distract motorists, obstruct views, and pose other problems that legitimately call for regulation.26 Therefore, the Supreme Court concluded that the government could regulate the physical components of the sign so long as the regulation remains content neutral and serves one or more of those important interests.27 The Supreme Court also did not foreclose a city’s ability to address residential lawn sign displays.

Time, place or manner restrictions on political lawn signs have been notoriously hard to implement constitutionally but is even more difficult post-Whitton. This is especially true with all the considerations a local government needs to factor in while drafting a lawn sign policy. The policy cannot be too non-specific as to cover other types of signs that make their way into your yard that may be beneficial. For instance, the sign regulation must allow some level of commercial speech for “for sale” signs, a sign that needs to stay in the yard for an extended period of time, during all times of the year (even during an election season), can be large, and can block views. Yet, as soon as a municipality allows an exception for a commercial “for sale” sign, the ordinance is likely to be viewed as suspect because it protects commercial speech to a greater degree than political speech.28 Such a regulation would be viewed as presumptively unconstitutional.29

While the local government may have legitimate interests in the regulations, current methods of regulation are unable to overcome the constitutional hurdles while also meeting the practical needs of a community, such as eliminating neighborhood clutter.

State law Restrictions on Private, Non-Commercial Property

  Minnesota state law supersedes any local ordinance and allows noncommercial signs to be posted any time within forty-six days leading up to the state primary in a general election year and to stay up for no more than ten days after the general election.30 The statute presents a variety of free speech concerns.

  While this statute may have been passed to prevent municipal governments from forbidding lawn signs all the time, it is harmful to have it on the books because it grants municipalities the power to regulate political signs outside of the relevant time period, which they may not have done otherwise. It also could chill speech if a candidate is less familiar with the rules or is running a race within multiple local jurisdictions, like those for federal, county, school board, and other offices, and just assumes that the statutory period is a safe guess to when they should put their lawn signs up.

When a municipality chooses to regulate, the statute signals, without explicitly stating, that the statute grants municipalities the right to regulate candidate lawn, the exact signs that pop up around a primary and general election, the time period referenced by the statute. For example, Edina singles out campaign lawn signs and mandates that outside of the state statutory time period, campaign signs may be limited to six square feet in size and one sign per candidate per frontage, and may be posted for no more than 60 days before and seven days after an election.31 Even if a municipality did not single out a specific type of sign, if it referenced the statute in its regulation, the statute could be viewed as being content based because the statute is so specific. It is similar to a nudge-nudge wink-wink to local jurisdictions and those subject to their control on exactly what it is being regulated. Not referencing this statute and its grant of power is likely the smartest move a municipality could make if it was attempting to regulate lawn signs in their community to try to maintain content neutrality.

If the municipality does not cite the statute, the municipality likely could not have an ordinance that is an outright ban on lawn signs because even with the state statute superseding its authority and allowing signs around election time, the Court has generally frowned upon outright bans on speech.32 Therefore, the safest type of regulation to avoid a constitutional challenge would be just a manner restriction limiting the number and size of all signs in an individual lot at all times. Then, the state statute would supersede, allowing non-commercial signs, including campaign signs, in any size and quantity during the designated time frame before and after an election.

The specific interaction of the state and local regulation of signs granted protection under the state statute then may be challenged, but both the ordinance and the statute independently may be hard to challenge in court since the state statute on its own seemingly does not produce an injury, as it grants a right, and the local regulation is content neutral and just regulates the manner in which speech may be conducted. This would not guarantee that there is no legal challenge, however, it is one of the safest ways a municipality could regulate lawn signs.

However, the state statute seemingly grants local governments more power to distinguish between categories of speech than they legally have, and local governments have regulated too far, making distinctions to fit the practical reality of a city, but not the constitutional limitations it must abide by. For example, Edina references the statute that protects noncommercial signs from size and number restrictions leading up to a campaign but has a separate section for noncommercial opinion signs (ex. “Black Lives Matter;” “Stop Climate Change;” or “I love the Second Amendment”), where the ordinance does not reference the state statute.33 The interpretation of the state ordinance, given the explicit time frame of the statute’s protection, is that it is meant to target express advocacy signs not issue advocacy signs, and that distinction makes the statute at risk for being classified as content based and unable to meet the strict scrutiny standard.

Potential Solutions

  Lawn signs are regulated primarily at a local level because local government deals with the maintenance and presentation of a parcel of property. Allowing local governments to regulate the placement of lawn signs would require either careful crafting of a municipal ordinance, or state or federal campaign reform.

State Level Reform

  One solution, at least in Minnesota, is to prohibit lawns signs prior to a certain number of days before the primary by including the restriction in the public subsidy program.34 This would tackle the primary source of lawn signs. This is because local races that do not qualify for the public subsidy program, especially in smaller cities, often do not have filing periods until closer to an election. Also, since local races are often nonpartisan, they do not have primary elections, so fewer signs are put up and for a shorter period of time. State races are primarily responsible for the exorbitant number of signs and for the signs that are up early on in the year. Most candidates in the state of Minnesota sign up for the state public subsidy program. In 2018, 278 candidates of the 305 candidates for constitutional or legislative office who filed for office in 2018 and registered a committee with the Minnesota Campaign Finance Board signed the voluntary public subsidy agreement.35 That is equal to 91.1% of candidates.36 Since 2010, over 85% of candidates consistently sign up to be eligible for the program.37

  The public subsidy program has two components which account for its popularity: (1) the direct public subsidy payment, and (2) the political contribution refund program. The direct public subsidy payments are made if the candidate’s campaign meets four requirements: (a) a campaign signs the public subsidy agreement, (b) raises the required threshold in qualifying contributions, (c) files an affidavit of contributions certifying the campaign has raised the required threshold in qualifying contributions; and (d) files a pre-primary and primary election report with the Campaign Finance Board.38

  The public subsidy agreement imposes requirements that a campaign must abide by.39 For instance, campaign committees that sign the agreement must abide by spending limits40 and they are limited in the candidate’s ability to self-fund their campaign.41 They must also return any unspent public subsidy money and caption campaign advertisements.42

  Those who choose to participate in the public subsidy accept some regulations on their free speech abilities. For example, they accept limitations on campaign expenditures, so likely if there was a challenge, whether you could put a lawn sign up in June or May probably would not be the biggest concern likely to pose a constitutional challenge in terms of free speech conditions to the program. Yet, the weight of the problem does not determine its constitutionality.

  The specific reason why expenditure limits, and if amended, lawn sign placement regulations are allowed for candidates participating in the public subsidy program is the same reason why the Presidential Election Campaign Fund Act, limiting presidential campaign expenditures for candidate’s campaigns that choose to participate, was deemed constitutional: because a candidate is not compelled to accept public financing under the statute and therefore does not need to accept the limitations that come with the option.43 The U.S. District Court for the Southern District of New York, when reviewing the Presidential Election Campaign Fund Act, found that candidates could successfully run without the program, so the program was voluntary. The Minnesota public subsidy program works in a similar way, as candidates may run and win a campaign without accepting the public subsidy.

  Since a candidate may run and win without participating in Minnesota’s public subsidy program and thus need not comply with the limitations set forth by the program, adding an additional requirement that would limit a candidate’s First Amendment rights – by restricting the time period in which they are subject to local regulation on lawn sign placement, or a mandating that they comply with a local regulation setting forth a specific time-frame in which they are not allowed to put up signs – could be deemed constitutional. If this approach was taken, the state should consider adding a specific time frame, instead of leaving it up to local regulation, because the placement would have implications on the candidate’s ability to receive public financing and a specific time-frame would allow for cleaner regulation. A specific time frame would also save local jurisdictions from constitutional challenges since it would be less clear that the policy is tied to the public subsidy requirement.

Local Government Control

Local governments, while typically the jurisdiction that regulates the appearance of properties, likely have few options to regulate the placement of political lawn signs unless other changes are made to the body of election law.44 They still may be tasked with enforcing state regulations, like if they choose to limit candidate lawn sign placement as a condition to public funding, but likely cannot regulate candidate lawn signs in their own right.

If a municipality does decide to regulate lawn signs, the implications on city staff, city planning, design ordinances, and other aspects of local government likely make them impractical at best and unconstitutional at worst. To avoid a constitutional challenge, limitations should be minor, like not allowing electronic signs generally or placing restrictions on the size and number, but even then, a municipality is taking on a certain degree of legal risk. Accepting that unless there is further reform in the area of constitutional speech law, the hands of local government are relatively tied may be the safest option.

Conclusion

  Currently, Minnesota’s state and local regulations present constitutional problems similar to those across the United States that are beginning to be challenged in the courts. State statutes distinguish between commercial and residential property, in essence, natural persons and corporations, in a way that is likely unconstitutional given Supreme Court precedent, and, on residential property, state statute grants local governments the ability to regulate lawn signs based on content, in a way that is likely unconstitutional.

Lawn signs may seem insignificant, an outdated fade in the age of social media, or the odd thing that campaigns do, but they can play a crucial part in building grassroots support, building community, aiding with fundraising, enhancing name recognition, and providing a way for candidates to introduce themselves to party supporters and increase buy-in to their campaigns without asking for money. Regardless of whether they have any impact on campaign results or sway a single voter, they are still viewed as playing an important role in local races and are First Amendment-protected speech that is often overlooked.

  1. Lane Wallace, The Popularity and Irrelevance of Our Lawn Sign Wars, THE ATLANTIC (Nov. 3, 2012), https://www.theatlantic.com/national/archive/2012/11/the-popularity-and-irrelevance-of-our-lawn-sign-wars/264488/.
  2. Id.
  3. This paper refers to campaign lawn signs as candidate lawn signs because of the varying language used by municipalities and the state government. While some municipalities distinguish between issue, candidate, and referendum signs, others broadly refer to them all as election signs. Given that restrictions may vary, while First Amendment protections extend to issue or referendum signs equally for clarity “candidate lawn signs” is used. This paper focuses on express advocacy lawn sign regulations.
  4. Wallace, supra note 1.
  5. Id.
  6. Data on this subject is heavily debated and research methods are often scrutinized because a well-run campaign will not rely on lawn signs alone. Some studies have found lawn signs to have a small impact, but many campaign workers will state that they are ineffective. Eliza Collins, Lawn Signs Can Swing an Election, Study Finds, POLITICO (Dec. 28, 2015, 1:03 PM), https://www.politico.com/story/2015/12/campaign-lawn-signs-little-effect-217166; The Campaign Workshop, Political Yard Signs: All You Need to Know, THE CAMPAIGN WORKSHOP BLOG (Jan. 13, 2020), https://www.thecampaignworkshop.com/blog/political-campaign/political-yard-signs.
  7. Wallace, supra note 1.
  8. While this paper will primarily focus on Minnesota statutes and regulations, national challenges to similar state laws may be enlightening and persuasive authority if a court in Minnesota reviews the statutes discussed in this paper. The ACLU has been particularly active in bringing legal cases against jurisdictions that restrict the placement, size, and number of lawn signs in private properties. ACLU Penn., Rudolph v. Township of South Park, ACLU PENN., https://www.aclupa.org/en/cases/rudolph-v-township-south-park (last visited April 5, 2020); ACLU Mass., Holyoke Wants to Police Your Lawn Signs, ACLU MASS. (Nov. 16, 2018, 2:45 PM), https://www.aclum.org/en/news/holyoke-wants-police-your-lawn-signs; Alan Schlosser, ACLU NorCal, $700 for a Lawn Sign?. ACLU NORCAL (Jul. 25, 2012), https://www.aclunc.org/blog/700-lawn-sign (the City of Milpitas told a resident that he could either take his lawn sign down, put up a smaller, illegible sign, or pay $700 for an exception to a local ordinance concerning the size and placement of lawn signs. His lawn sign was an issue advocacy sign.); ACLU, ACLU-NJ Secures Right to Display Political Lawn Signs, ACLU, https://www.aclu.org/other/aclu-nj-secures-right-display-political-lawn-signs (last visited April 5, 2020) (According to the article, Haddon Heights’s ban on political signs in town was unconstitutional because it violated the right to free speech both under the U.S. Constitution and the New Jersey Constitution because it did not serve a legitimate purpose and restricts speech, and also protects commercial speech more than noncommercial speech. The Borough agreed not to enforce the ban, but the ACLU-NJ still filed suit. The article also notes that the ACLU-NJ has received injunctions for other similar restrictions throughout the state.).
  9. See St. Paul, Minn., Municipal Code § 30.01 (current as of January 13, 2020) (stating the purpose of election lawn sign regulations is to prevent vandalism, improve the appearance of the City and prevent distracted driving). See also, ACLU Mass., supra note 8 (noting that before a court case decision in 2019, the City of Holyoke, Massachusetts, had an ordinance prohibiting “temporary” lawn signs on private property during winter months).
  10. League of Minn. Cities, Informational Memo: Sign Ordinance and the First Amendment, LEAGUE OF MINN. CITIES (July 12, 2019), https://www.lmc.org/media/document/1/signordinancesandfirstamendment.pdf (suggesting that including a purpose of “traffic safety or aesthetics” as “substantial government interests” and recommends as a best practice “adopt[ing] sign ordinance regulations based on time, place, and manner concerns, not on content”). While on its face, these recommendations may appear to be correct, Whitton v. City of Gladstone, 54 F.3d 1400 (8th Cir. 1995) found that “aesthetics” and “traffic safety” are not compelling, and time restrictions based around Election Day have been struck down as restrictive.
  11. U.S. Const. amend. I.
  12. R.A.V. v. St. Paul, 505 U.S. 337, 422 (1992).
  13. See generally, id.; Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503 (1969).
  14. See generally, Police Dept. of the Cty. Of Chicago v. Mosley, 408 U.S. 92 (1972); Hill v. Colorado, 530 U.S. 703 (2000).
  15. See generally, McCullen v. Coakley, 134 S. Ct. 2518 (2014).
  16. Id.
  17. City of Ladue v. Gilleo, 512 U.S. 43 (1994). Justice O’Connor’s concurrence in City of Ladue v. Gilleo (1994) states this rule particularly well: “With rare exceptions, content discrimination in regulation of speech of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one” (emphasis added).
  18. Whitton, 54 F.3d at 1400.
  19. See Edina, Minn., Municipal Code § 36-1657(2) (calling candidate lawn signs “campaign signs”); St. Paul, Minn., Municipal Code § 30.04 (calling candidate lawn signs “temporary election signs”); Stillwater, Minn., Municipal Code § 31-509 subd. 4 (b) (calling candidate lawn signs “political signs.”); City of Savage, Campaign Sign: Information and Regulations, CITY OF SAVAGE, https://www.cityofsavage.com/home/showdocument?id=100.
  20. Minneapolis, Minn., Municipal Code § 543.310 (current as of January 6, 2020).
  21. See generally, Police Dept. of the Cty. Of Chicago v. Mosley, 408 U.S. 92 (1972); Hill v. Colorado, 530 U.S. 703 (2000).
  22. 135 S. Ct. 2218 (2015).
  23. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2222 (2015)
  24. 54 F.3d 1400 (8th Cir. 1995).
  25. See generally, Whitton, 54 F.3d.
  26. City of Ladue v. Gilleo, 512 U.S. 43 (1994).
  27. Id.
  28. Whitton, 54 F.3d at 1403.
  29. Id.
  30. Minn. Stat. § 211B.045 (2019).
  31. Edina, Minn., Municipal Code § 36-1657(2) (2019).
  32. Anthony J. Durone and Melissa K. Smith, First Amendment and Private Property: A Sign of Free Speech, 60 (2) MO. L. REV. 415, 420 (1995).
  33. The city’s distinction between noncommercial signs and noncommercial opinion signs is likely a content-based restriction. If the city’s ordinances were subject to strict scrutiny review, they would likely be deemed unconstitutional. However, for the purposes of this section, the analysis primarily discusses how the state statute sets cities up for legal risk given the interplay of state and local law.
  34. This policy solution would not prevent andante supporter from making their own lawn signs and placing it in their own yard. Since only the candidate, and their campaign, signed the agreement, it would only apply to signs where campaign funds were used to purchase them. The same signs where the respective committee disclaimer must be placed. This solution would also not prevent independent expenditures from being used to purchase signs. The analysis of this policy solution should not be read as negating the rest of the paper where the resident/homeowner was the speaker. In this section, the production and distribution of signs to supporters from the campaign committee would be subject to regulation and would be the campaign’s/candidate’s speech, similar to how the distribution of flyers is speech.
  35. Minnesota Campaign Finance Board, Campaign Finance and Public Subsidy Disclosure Board Releases Final Public Subsidy Payment Amounts for 2018 Election, MINN. CAMPAIGN FIN. BD., https://cfb.mn.gov/pdf/publications/public_subsidy/historical/2018_public_subsidy_payments.pdf?t=1580605895 (last visited Feb. 1, 2020).
  36. Id.
  37. See generally, Minnesota Campaign Finance Board, Campaign Finance and Public Subsidy Disclosure Board Releases Final Public Subsidy Payment Amounts for 2016 Election, MINN. CAMPAIGN FIN. BD. (Dec. 19, 2016), https://cfb.mn.gov/pdf/publications/public_subsidy/historical/2016_public_subsidy_payments.pdf?t=1580606139 (85.5% of eligible candidates agreed to participate in the public subsidy program); Minnesota Campaign Finance Board, Campaign Finance and Public Subsidy Disclosure Board Releases Final Public Subsidy Payment Amounts for 2014 Election, MINN. CAMPAIGN FIN. BD. (Dec. 22, 2014), https://cfb.mn.gov/pdf/publications/public_subsidy/historical/2014_public_subsidy_payments.pdf?t=1580606216 (88.5% of eligible candidates agreed to participate in the public subsidy program); Minnesota Campaign Finance Board, Campaign Finance and Public Subsidy Disclosure Board Releases Final Public Subsidy Payment Amounts for 2012 Election, MINN. CAMPAIGN FIN. BD. (Dec. 21, 2012), https://cfb.mn.gov/pdf/publications/public_subsidy/historical/2012_public_subsidy_payments.pdf?t=1580606247 (85% of candidates who filed for state legislative office signed the voluntary agreement to be eligible for the public subsidy program); Minnesota Campaign Finance Board, Campaign Finance and Public Subsidy Disclosure Board Releases Final Public Subsidy Payment Amounts for 2010 Election, MINN. CAMPAIGN FIN. BD. (Jan. 12, 2011), https://cfb.mn.gov/pdf/publications/public_subsidy/historical/2010_public_subsidy_payments.pdf?t=1580606306 (89% of candidates agreed to participate in the public subsidy program).
  38. Minn. Campaign Finance & Public Disclosure Board, Public Subsidy Program, MINN. CAMPAIGN FINANCE & PUBLIC DISCLOSURE BD., https://cfb.mn.gov/pdf/quicklinks/public_subsidy_program.pdf?t=1580606554 (last visited Feb. 1, 2020).
  39. MINN. STAT. § 10A.322 (2019).
  40. MINN. STAT. § 10A.25 (2019).
  41. MINN. STAT. § 10A.322 (2019); MINN. STAT. § 10A.27, subdiv. 10 (2019).
  42. MINN. STAT. § 10A.322 (2019); MINN. STAT. § 10A.38 (2019); MINN. STAT. § 10A.324 (2019).
  43. Republican Nat’l Committee v. Federal Election Comm’n, 487 F. Supp. 280, 284 (1980). See also, Corren v. Condos, 898 F.3d 209 (2nd Cir. 2018) (upholding a dismissal of a claim that Vermont’s public election financing system that allowed candidates to receive a grant of public funds if they abided by certain spending limits violated the First Amendment because candidates were allowed to freely choose whether or not to participate); Vote Choice, Inc. v. Di Stefano, 814 F. Supp. 195 (R.I. D.C., 1993) (upholding Rhode Island’s public subsidy program, which includes strong benefits, like television ad time on a state-run station, and included expenditure limits stating a candidate did not have to participate).
  44. This paper does not discuss a city or county’s ability to regulate the public right-of-way. This paper also does not discuss limitations that associations may place on properties, covenants, landlords, private school officials, or other local bodies may implement.