Late last week, as the sun was going down, Diana Windley got a knock on the door of her home in Mountain Green.
The woman standing on her porch worked for Morgan County and informed Windley that there had been a complaint about the campaign lawn sign in her front yard and Windley needed to take it down. The sign supported Raelene Blocker, who is challenging incumbent Rep. Kera Birkeland in the upcoming Republican primary on June 28.
But, it wasn’t what was on the sign that was the problem.
Morgan County — along with a number of other cities and counties around the state — has a provision in their code that prohibit posting campaign signs too early before an election. In the case of Morgan County, campaign signs are prohibited more than 30 days before an election, or May 29, even though ballots get mailed out June 7.
The woman from the county was very nice, Windley said, but Windley said she was dumbfounded that the county would be telling her what she can put on her private property, especially when flags, for example, with a certain former president, can fly over her neighbor’s house.
“This is my yard,” Windley wrote in an email to Morgan County Attorney Garrett Smith. “I should be able to [put] whatever sign I want to in it, when I want to. This is a First Amendment issue, and Morgan County is violating my First Amendment rights.”
Smith countered that local governments have broad police power and can put restrictions on the “time, place and manner” for speech through signs.
But the county is on some very tenuous legal footing.
“In my opinion, the ordinance is clearly unconstitutional,” said David Reymann, a Salt Lake City attorney who has worked on numerous First Amendment cases.
The U.S. Supreme Court has recognized that yard signs have long been a cheap, convenient way to communicate political thoughts. And while governments can enact rules to protect public safety and reduce clutter, the law generally recognizes a person’s private property right.
In their 2015 decision in Reed v. Gilbert, the court unanimously found that city ordinances that treat certain signs differently based on their purpose and message are unconstitutional, since the ordances are regulating the content of the speech, not merely how it is being said.
The rule of thumb is that anyone enforcing a truly content-neutral signage rule should be able to tell if the sign is legal or not without having to read what the sign says.
Sure, a city or county can prohibit you from putting a massive, flashing billboard in your front yard or posting a sign that might pose a risk to drivers or pedestrians. Or they can — and do — ban campaign signs on public property like parks and overpasses (although we’ve all seen signs end up there, too).
But unless there is a compelling government interest (keeping neighborhoods looking tidy doesn’t cut it) and the rule is narrowly tailored, an ordinance that treats similar signs differently based on their message is unconstitutional.
“[The ordinance] regulates signs based on their content ... whether they relate to a political candidate. The Supreme Court has held that such ordinances constitute viewpoint discrimination and trigger strict scrutiny,” Reymann said. “[The government] can regulate signs neutrally within certain boundaries, but it cannot do what this ordinance does — regulate some signs based on their content but not others.”
In 2004, the American Civil Liberties Union of Utah sued Draper City over a city ordinance that banned signs more than 30 days before the election. They settled the lawsuit after Draper agreed to rewrite its code.
But these types of bans linger in a handful of Utah cities and counties.
Clearfield City has an ordinance identical to Morgan County’s, banning campaign signs more than 30 days before a primary. Moab prohibits campaign signs more than 45 days before the election. Weber County and the town of Clinton have 60-day prohibitions. Cache County allows signs to be up for just three weeks.
Helper only allows residents to put up one sign until 60 days before a general or special election, at which point a resident can post up to three signs — a different approach that still raises the same issues.
But here’s some welcome news: After Windley e-mailed the county attorney about the justification for the sign law, Smith informed her that the Morgan County council wanted to revisit the provision. Until a new statute was adopted, the attorney said the county would be lenient when it comes to enforcement.
That’s a start. Ultimately, local governments need to get rid of these time restrictions and start respecting both free speech and an individual’s private property rights.