KNOW YOUR LEGAL RIGHTS / Is my yard sign “protected speech?”

By Barry E Krischer

The last few months this column has reflected on the First Amendment and what it means. But, freedom of speech is only one of the rights guaranteed by the First Amendment. The other freedoms protected are religion, the press, peaceable assembly, and petitions to the government for grievances. Yard signs, depending on their content, can invoke one or more of these basic freedoms.

Whether there is a right to post signs on private property was decided by the U.S. Supreme Court in a case called Reed v. Town of Gilbert, Arizona, (S.Ct.2014). Basically, the town fathers had promulgated a rule that controlled the size, placement, content, and even day and hour that a sign could be posted. The ordinance imposed stricter limitations on church signs announcing religious services, day and time, and location of the prayer service. Additionally, the church posted their signs in advance of the time period set out in the ordinance. The church filed a lawsuit in which they argued the town’s sign regulations violated their First Amendment right to free speech. The Supreme Court found that the ordinance distinguished church signs from other signs that displayed “political” or “ideological” messages. The Court has over the years evaluated government attempts to control free speech using a “content neutral” test. The justices said the town’s sign code was unconstitutional because it singled out different signs for special treatment. However, on the other hand, reasonable “time, place, and manner” restrictions (such as where the sign can be located, size limits, and the like) are permissible if applied without regard to the actual wording or message on the sign.

As noted in previous columns, free speech does not include yelling “fire” in a crowded theater. So basically, you can post any sign you want in your yard so long as the messages doesn’t present a clear and present danger or constitute clear obscenity. Restrictions on outdoor advertisements carefully targeted at the protection of minors have also been upheld. In Basiardanes v. City of Galveston, (5th Cir. 1982), the court held the city could prohibit display of provocative, lurid, sexually explicit posters by an adult theater. The court allowed these sign restrictions as a narrowly tailored means of reducing “speech” that was indiscriminately available to minors. Thus, as is the case with most signs, some restrictions are permissible.

As we approach the upcoming political season yard signs are a great way to increase candidate name recognition (while it probably does not change anyone’s vote). However, this form of expression may conflict with a city/state ordinance, limiting the time signs can be displayed. Which is why it is important to be familiar with Florida yard sign regulations.

Campaigns are not allowed to place signs on the state, county or city rights of way. Section 479.11(8), F.S. provides that no signs shall be erected, used, operated, or maintained on the right of way of any highway on the State Highway System. Political signs placed on state right of way will be removed by FDOT staff and placed at one of the department’s operations centers.

Political signs are not allowed to be posted on private property without the permission of the property owner. If you or the candidate posts signs on private property even with permission the campaign signs must be removed within thirty days of the election. In Florida, yard sign regulations are governed by Section 106.1435, F.S., which provides:

(1) Each candidate, whether for a federal, state, county, or district office, shall make a good faith effort to remove all of his or her political campaign advertisements within 30 days after:

(a) Withdrawal of his or her candidacy;

(b) Having been eliminated as a candidate; or

(c) Being elected to office.

As the presidential elections heats up, condominium, homeowners association, and communities throughout Florida are faced with the issue of political signs being posted in front yards, on balconies, in windows and on and around the common areas. Homeowner Associations typically enforce their individual rules by a warning letter first. And in that that the election season is relatively short-lived, any extraordinary efforts that they may take to address this issue will probably have a minimal impact.

Theft in any form, including election signs, is prohibited. The reality is, taking anything from someone else’s property that does not belong to you is a theft. In Florida, stealing a political sign is considered petty theft, a misdemeanor, punishable with up to a year in county jail and a $1,000 fine. But if the sign is worth more than $300, that misdemeanor becomes a felony charge that carries a $500 fine and up to five years in state prison. While the issue of missing campaign signs is common, candidates could find their signs missing due to a violation of the requirements relating to sign placement. Florida law prohibits signs from being placed in certain locations, such as within 660 feet of any state or federal right-of-way, within 100 feet of a church, school, cemetery, public park, or playground. Offending signs are subject to seizure.

Lastly, it is important to bear in mind that Florida Statutes does not prevent municipalities from imposing their own requirements on campaign signs, so long as they are not in conflict with Florida’s regulations. The historic preservation statutes allow towns to designate districts and establish commissions to regulate how property can be constructed or altered there. They specifically allow the commissions to control the style, material, size, and location of outdoor signs and bill posters within the district. Thus, the Key West Historic Architectural Guidelines and the Historic Architectural Review Commission (HARC), may also provide guidelines and restrictions on signage.

So, the answer to the opening question is an emphatic “maybe.”

Editor’s Note: Barry Krischer has been a criminal law practitioner for 48 years. He served as State Attorney in Palm Beach County from 1992 – 2008. He currently volunteers at the Palm Beach County Sheriff’s Office, Legal Affairs Unit, and regularly provides in-service training to law enforcement officers. He can be reached at [email protected].

[livemarket market_name="KONK Life LiveMarket" limit=3 category=“” show_signup=0 show_more=0]