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California town faces accusations of stifling free speech with signage policy – September 2018

Clayton, CA

The city council of Clayton, CA, faced accusations of infringing Free Speech in September 2018 because of its signage policy, which limits residents to having three square feet or less of “temporary noncommercial signs” in their yards. This, in essence, made it illegal for a yard to have more than one average-sized campaign sign.

Key Player

The Clayton City Council governs this small rural town in the East Bay region near San Francisco. It discussed and reiterated its signage policy in May 2017, which effectively limited Clayton residents to one yard sign for every property.

Further Details

On May 16, 2017, the Clayton City Council held a meeting to discuss the town’s signage policy, in response to the US Supreme Court’s decision in Reed vs. Town of Gilbert, Arizona, which held that regulations restricting the size, duration and location of “political” and other signs could be viewed as content-based and thus could violate First Amendment speech protections, the East Bay Times reports. Content-based, in this context, means that a government could impose restrictions based on the message a sign conveys.

Mindy Gentry, Clayton’s community development director, recommended aligning the town’s signage policy with the precedent set by the Supreme Court decision, including allowing “temporary noncommercial signs” no larger than 30 square feet on residential properties.

The town’s municipal code defines a “temporary noncommercial sign” as “any noncommercial temporary sign displaying an ideological, political or other noncommercial message (…) which is designed or intended to be displayed for a limited period of time.” Some city council members objected to the proposed size increase, saying that the original policy was put in place to avoid “sign blight” and to limit the amount of signage that could populate an individual yard.

Councilmember Julie Pierce described it as a “really emotional issue” for residents. Councilmember David Shuey said he agreed the sign area limit should not increase, explaining that “we may be subject to potentially a lawsuit, but frankly, that’s a risk that’s pretty minimal in my view.” Following this, the council sent the ordinance back to the Planning Commission to retain the three-square-foot aggregate limitation.

In September 2018, as campaigns for Clayton City Council heated up, the East Bay Times reported that candidate Brian Buddell accused the sitting councilmembers of violating his First Amendment rights through the policy, as his supporters and those of candidate Jeff Wan had been asked to remove signs supporting the candidates from their yards or face a fine of up to $500.

Since these accusations were made, Clayton City Manager Gary Napper has indicated that he will not enforce the ordinance, which the City Council has indicated it will reconsider. However, the current ordinance still states that signs are allowed, provided that “the aggregate signage displayed at one time does not exceed three (3) square feet in area per parcel,” and has not been changed as of this writing.

Outcome

California town decides not to enforce ordinance prohibiting signs greater than three square feet.

The ordinance states that aggregate signage on a property may not exceed three square feet in area, despite its apparent inconsistency with a Supreme Court ruling on a case from Arizona; but following backlash from political campaigns, the City Manager has decided not to enforce the policy until it is reviewed again by the City Council.

External References

East Bay city’s stirs election season first amendment debate.

Clayton, California  Municipal Code.

Prepared by Gustav Honl-Stuenkel ‘20

Uploaded to tracker: December 13, 2018