Fighting Limitations on Free Speech in City of Cortland Zoning
The following is the full letter I submitted as my public comments to the City of Common Council at their 20 October 2020 meeting. I also spoke during the public comments period of this meeting about the City of Cortland zoning restrictions on my free speech and that of all Cortland residents, speech which is protected and enshrined in the US Constitution.
With the support of members of the City Common Council, the Zoning Code violations were tossed aside and no new violations would be written, and the City pledged to revise the zoning code in early 2021 to remove the limitation language altogether. I appreciate their support in protecting our free speech.
20 October 2020 Robert Rhea Code Enforcement Officer 25 Court St Cortland, NY 13045
RE: Your Follow up to my Letter of October 8th 2020
Dear Mr. Rhea This letter is in response to your Notice of Violation/Order to Remedy delivered to my home on October 5th 2020, dated October 1st 2020. In the notice, you have cited my property pursuant to 2019 Zoning Ch 300\300-113 Political Signs, section 9: “Any lot may have up to two signs provided they are removed within 30 days of the conclusion of the ballot for which they are intended to advertise.”
I do agree that I currently have five campaign/political signs on my property at 25 W. Court St. These signs are placed fully within my front yard. They are set back from the sidewalk to prevent any potential line-of-sight issues in my driveway. They are not on the city’s roadway verge.
However, this is an official written response back to you stating that I do not intend to remove these signs from my property until the conclusion of the election on November 3rd 2020.
I do not take this refusal to comply with your request lightly. I have sought out advice from many different sources. In the end, I have come to the conclusion that this provision (300.113.9) in the City of Cortland Zoning code is in direct violation of my Constitutional rights under the First Amendment.
In coming to this conclusion, let me provide you with the various sources which directly back up my assertion that this intrusion on my First Amendment rights is unsupported.
NYS Office of General Counsel, Legal Memorandum LU02 (https://www.dos.ny.gov/cnsl/lu02.htm) which states that: “If challenged, such local regulations are likely to be struck down by the courts as an unlawful interference with the right of free expression as guaranteed by the First Amendment to the United States Constitution. The main flaw in a local law or ordinance that applies specifically to election signs is that it imposes restrictions based on the content or message.” Further this memorandum states:
“ While local governments have greater leeway in regulating commercial signs, restrictions on noncommercial signs, including those that support a candidate, must be limited to time, place and manner of posting, and must adhere to the following criteria: 1. The regulations must be justified without reference to the content of the signs subject to the law (i.e., content neutral); 2. The regulations must be narrowly tailored to serve a significant governmental interest; and 3. The regulations must leave open ample alternative channels for communication of the information. ”
Based on this test, I fail to see how the City of Cortland has a “significant governmental interest” in political signs placed well within my front yard. Also, how does the City Code justify the selection of 2 signs versus 3 signs?
The Institute for Free Speech in their discussion of the Rubin v. Theobald case from 2013 (https://www.ifs.org/cases/rubin-v-theobald/) states:
“ While it is true that the government may limit political signs if it is in the public interest, such as when signs create safety concerns, any such regulations must be tailored to survive strict scrutiny in court. That is, they must take care not to overly infringe on First Amendment political expression rights by being carefully drafted to address only compelling state interests. In this case, no safety interest involving political yard signs merits infringing some of the most basic rights enshrined in our Constitution. ”
Again, the City of Cortland Zoning regulations do not establish or assert the compelling city interests in limiting free speech for political signs.
The NYS Office of General Counsel, Legal Memorandum LU02 further refers to the following ruling by the US Supreme Court: “Applying well established principles of constitutional law, a federal appeals court decided in 1995 that provisions of the municipal sign code of a town in Missouri that specifically regulated political signs were content-based and, therefore, unconstitutional as impermissible restraints on free speech. Whitton v. City of Gladstone, Missouri, 54 F.3d 1400 (8th Cir. 1995).”
In additional, I would draw your attention to the Municipal Control of Signs, published August 2015 (https://www.dos.ny.gov/lg/publications/Municipal%20Control%20of%20Signs.pdf) “The U.S. Supreme Court has held that homeowners have a constitutionally protected interest in placing political signs on their own property when the municipality permits other kinds of lawn signs.”
Mary M. Janicki, Principal Analyst, with the Connecticut Office of Legislative Research, provides further clarification of the US Supreme Court rulings on this matter in her research publication “Municipal Bans on Residential Political Signs” (https://www.cga.ct.gov/PS98/rpt/olr/htm/98-R-1189.htm).
“ The U.S. Supreme Court has ruled that the display of political and other types of signs on residential property is a unique, important, and protected means of communication and towns cannot restrict the display of such signs. The decision has not been overturned. In a 1994 case, the Court upheld lower court rulings declaring an ordinance that bans residential signs an unconstitutional restriction on the freedom of speech (City of Ladue, et al. v. Margaret P. Gilleo, 114 S.Ct. 2038). The Ladue, Missouri ordinance banned all residential signs (with some exceptions) to minimize visual clutter in the town. A resident sued, alleging that the ordinance violated her right to free speech by prohibiting her from displaying a sign stating “For Peace in the Gulf” from her home. The District Court found the ordinance unconstitutional, and the Court of Appeals affirmed. The Supreme Court agreed, finding that the town's interest in regulating signs does not outweigh its residents' right to free speech.
The Court's decision holds that signs are an important medium of political, religious, or personal messages for which there are no exact alternatives. Handbills or newspaper advertisements are poor substitutes since a residential sign readily identifies the “speaker.” Yard signs are unusually inexpensive and convenient. They are a particularly effective way to reach one's neighbors. Moreover, the Court recognized the special place that individual liberty in the home holds in our culture and our law. While signs are subject to municipalities' police powers, the Court warned that they affect communication and towns cannot be overbroad in their restrictions on free speech.
On October 16, you wrote in a memorandum to me that "I think the two-sign limit in residential districts is reasonable. Someone can express multiple candidates over a period of days by changing which signs are displayed each day.” I appreciate your suggestion on how I should choose to exercise my First Amendment rights to satisfy a local zoning code. But I do not see how this extremely arbitrary limit on free speech meets the criteria articulated under Clark v. Community for Creative Nonviolence, 468 U.S. 288, 293, 82 L.Ed.2d 221, 227, 104 S.Ct. 3065 (1984). which clearly lists that "the regulations must be narrowly tailored to serve a significant governmental interest." (https://www.dos.ny.gov/cnsl/lu02.htm)
I fail to see how the number of political signs in my front yard meets a "significant governmental interest" and how it also comports with the very first objective listed under §300-110 of the City Code that you have provided: "1. Ensure right to free speech as protected under the Constitution." I double checked, but I don't see where it says I get to exercise my rights on alternating days.
Finally, to the specific issues of the number of political yard signs, I would draw your attention to the analysis of David L. Hudson Jr., with Freedom Forum Institute (https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/personal-public-expression-overview/political-yard-signs/)
“ In Arlington County Republican Committee v. Arlington County (1993), a three-judge panel of the 4th U.S. Circuit Court of Appeals invalidated a county law that imposed a two-sign limit on temporary signs for each residence. The court noted that “the two-sign limit infringes on this speech by preventing homeowners from expressing support for more than two candidates when there are numerous contested elections.” ”
I have reached out to the NY Chapter of the American Civil Liberties Union and the Institute for Free Speech for additional assistance on this matter. I believe the current zoning regulations of the City of Cortland on the issue of political signs is one which fundamentally infringes on my First Amendment rights under the US Constitution. I look forward to a positive review and ruling on this issue with the withdrawal of the Notice of Violation. I am also now seeking the complete removal from the City of Cortland Zoning Code of 300-113 (9). If you are not able to provide relief requested on this matter, I would look to have the issue reviewed by the City of Cortland Common Council.
Beau A.C. Harbin
The first document is a copy of the Violation of Notice. The second document was sent by the Code Enforcement Officer via email on October 16 2020. My letter to the Common Council was revised to what is shown above to incorporate the issues raised in the second document.