L. Neil Smith's
Number 217, March 31, 2003


Sign Codes and Free Speech: Sometimes the Good Guys Win
by Joe Bommarito

Exclusive to TLE

Well, we got Trouble. Trouble right here in River City. Trouble. It starts with "T" and that rhymes with "C" and that stands for "Code."

A municipal Code is a compendium of ordinances, the local laws through which a municipality regulates practically everything not regulated by state or federal government. A sign ordinance is a fearsome thing. Usually unreadable and contradictory, it restricts and prohibits signs. It regulates the size and placement of signs, sign lighting, banners, flags, pennants, how long portable signs can be placed, setbacks from the street, on and on, ad infinitum. It often succeeds in regulating content.

River City[1] is a community of seventy thousand, one of several suburbs in a metropolitan area of about 350,000 population. A utility company in River City had an electronic sign on which it posted, among other things, the current temperature and numbers to call for service. One year during the Christmas season, the sign scrolled a message advertising a community theatre production of "A Christmas Carol."

The ever-vigilant inspections department notified the company that this message violated the Code due to its content. The company, a local branch of a statewide organization, contacted the Mayor. The item was discussed at a City Council work session one evening after most citizen attendees had departed.

The crux of the complaint against the company was that specific wording in the Code limited the content of a business sign to information about the business. No extraneous content was allowed.

During discussion, one Council member asked if regulating the wording on privately owned business signs wasn't tantamount to violating freedom of speech. The City Attorney replied by saying, "We can do that, as long as we can get away with it." Council members nodded wisely, agreeably. And they knew they could get away with it because the business in question would probably acquiesce, due to other regulatory powers of the City.

But at the next regular session of the City Council, the Mayor—whom I suspected as being a closet libertarian—announced an immediate moratorium on enforcement of the entire sign ordinance until the Council had time to review and revise the ordinance to ensure that freedom of speech and expression were not infringed. In my career of working for and with local elected officials, that was a first. City councils typically don't worry about individual rights.

City Councils are oftentimes merely reflecting the desires of the local community, or of its more vocal members. In another sign issue, local residents jammed a Council work session one evening to protest a new sign on the main east-west traffic corridor through River City. This corridor was also a primary commercial strip.

A new business opened up on the commercial strip catering to "adult" tastes. It sold adult-oriented wares, including scanty and thin lingerie, samples of which had been placed on mannequins in the front windows. While the citizens of River City didn't like the business, the primary objection was to the sign. It featured a woman with a "come- hither look" dressed in a bustier, panties, garter belt, stockings, and high heels, all black. It also named the business: "Night Moves." A picture appearing on the front page of the daily newspaper further fueled the furor.

To put this into context, it should be noted that River City was considered a bedrock of morality, full of good, church-going folk.[2] Before the "Night Moves" uproar, a great deal of fuss and fulmination had been raised by River Citizens over advertisements for a local upper- tier department store. The newspaper was running ads for the store's clothing sales, featuring brassieres and other women's undergarments, right on the third page. Drawings and even (gasp!) photographs of undergarment-clad women assaulted innocent children and the easily shocked when they merely opened the newspaper to check the weather forecast on the second page. This blatant immorality had been going on for years! Something "had to be done." Well, nothing was done and a disgruntled citizenry soon had a new target in its sights—"the sign," as it was referred to.

They stormed the City Council work session and the regular meeting the following week. They ranted about the rampant immorality of pornography displayed on a main thoroughfare. They fretted over the image of the community. They invoked G_d, en masse and individually. Church groups from neighboring communities showed up in support. Strangely, they claimed that "the sign" violated their own freedom of speech.

The City Council promised immediate action. It ordered a force of inspectors to go over the business with a fine-toothed comb, as if it hadn't already been done. The inspectors inspected. They measured parking spaces. They counted parking spaces. They took note of inventory. They reviewed fire codes. They inspected the sign. They evaluated the wording. They measured the height of the signpost, the setback from the street, the lighting, the height and width of the sign itself. They reported back to the City Council.

The sign was in compliance with the Code.

The cry from the citizens went up, "Change the Code!"

The City Attorney knew that he couldn't get away with his previous stance on regulating speech. He was dealing with a business that had successfully defended its rights in other cities, in other courts. He told the Council that the Code couldn't be changed to restrict the content of "the sign" without restricting the equal freedom of other businesses. or churches.

The church-goers couldn't grasp this. They didn't understand that church signs also fell under the Code and that their content would also be subject to the Code, and to complaints. They believed that signs could be regulated due to the apparent morality of the sign owner. They ranted, they grumbled, they finally went home, and as far as I know the sign is still there.

A rare win for freedom.


[1] Name changed to protect the semi-innocent, me.
[2] About 200% of the population, to hear them tell it.

Joe Bommarito, a former 24-year municipal finance director, is a freelance penslinger who currently writes for a print news weekly and for Strike-the-Root.com.


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