Serving the Flathead Valley & Montana since 2006. A reality based independent journal of observation & analysis. © James Conner.
Yesterday I stepped out of character at a public hearing: I delivered oral comments. Usually I observe hearings, then report on them at Flathead Memo. But those who remain silent when free speech is threatened risk being silenced when they try to exercise their right of free speech. So when the first person to testify began defending durational limits on political signs, I knew I had to present Flathead County’s commissioners with a countering argument, an argument for bringing a county law into compliance with the First Amendment, and what I hoped would be a convincing defense of free speech.
So I stepped up to the microphone, endorsed the county planning office’s proposal for updating the law, reviewed the legal and moral arguments supporting my position, and reminded the commissioners, and the audience, that preserving freedom is government’s highest duty.
Not everyone agrees. The dispute over the proposed revision of the county’s signage law pits community planning activists who seek visual order against political activists who seek free and robust debate. It’s a clash of values exacerbated by an asymmetrical understanding of the constitutional issues involved, and by significantly different levels of tolerance for the levels of regulation and state authority that accompany zoning.
Urban planners and advocates for zoning place great importance on reducing blight, an element of which can be ugly signs, especially ugly commercial signs. That’s led to restrictions on the size of signs, where those signs are placed, and how they are lighted. As long as those restrictions apply equally to all signs (content neutrality), and do not foreclose reasonable options for expression, they usually pass constitutional muster:
The conventional approach to analyzing whether a govenment burden on political speech will be permitted begins with a determination of whether the burden is content-based or content-neutral. See Curry v. Prince George’s County, Md.9 33 F.Supp.2d 447, 452 (D.Md. 1999). Content discrimination in government regulations is presumptively unconstitutional. City of Ladue v. Gilleo, 512 U.S. 43, 59 (1994) (O’Connor, J., concurring), A statute that regulates speech on the basis of content is subject to strict scrutiny and the municipality must show that the “regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end,” Boos v. Barry, 485 U.S. 312, 321 (1988). Withers v. Airmont, decided 2010.
Durational limits on political signs are without question content based. Flathead County’s planners had the intellectual honesty to draw that conclusion, and in proposing an end to durational limits, faithfully discharged their professional responsibility. For they knew that:
When strict scrutiny is applied to a content-based regulation, the regulation is likely to fail because state interests in aesthetics and trafic safety are rarely compelling enough to support content-based regulation. Withers.
Those who support durational limits argue in effect that displaying political signs more than 140 days a year in Flathead County disfigures the scenery to the point that life becomes unbearable. I know they believe this, and that they believe it with great sincerity. But they present no evidence that this is so. They present no evidence that a compelling state interest is involved. Neither do they evince a sophisticated understanding of the constitutional issues involved nor what I would consider a proper respect for those issues. Because they seek a high level of order and discipline in their community, and in their personal lives, they embrace laws that curtail everyone’s freedom. That is their right — but it is also their wrong against free speech.
And that’s why I advanced to the podium. Without free speech, we have no means to compel our government to protect scenery. It is the prohibition of political signs, not the exercise of free speech, that blights democracy’s landscape.