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ACLU: Sign Ordinance Violates Milpitans' First Amendment Rights

American Civil Liberties Union sues City of Milpitas for 'overly-restrictive and vague sign ordinance that is curtailing free speech in the city.'

 

Two Milpitas residents backed by the American Civil Liberties Union (ACLU) are suing the City of Milpitas for its sign ordinance that Alan Schlosser, legal director for the Northern California branch of the ACLU, says is overly restrictive and diminishing free speech in the city. 

According to a statement written by Schlosser, the issue with the city’s sign ordinance was ignited when Milpitan Rob Means put a 26 x 26 inch sign reading “We are the 99%” in his front yard earlier this year. Soon after, means reportedly received an abatement notice from the city saying he needed to remove the sign, decrease its size to fit within the city’s 1 x 1 foot requirement or fork over $700 to apply for an exception to the ordinance. 

Another resident, Don Bloomer, who lives down the street from Means, encountered the same issue with a sign in his yard, but removed it after receiving the abatement notice, Schlosser states.

The ACLU asked the City of Milpitas to restrict enforcement of the ordinance until it was modified in such a way that it wouldn't limit free speech, and decided to sue after “no meaningful action from the city” was taken, Schlosser states. 

City Attorney Says Lawsuit is Aggressive

Michael Ogaz, attorney for the City of Milpitas, said the lawsuit is surprising because city staff told ACLU officials they wouldn’t enforce the ordinance on Means or Bloomer during a previous phone conference.

As for amending the ordinance, Ogaz said city staff was preparing to go through the timely process, which requires creating a proposed change, having it reviewed by the planning commission and then having the planning commission deliver a recommendation to the city council for approval. 

“We thought the agreement not to enforce the ordinance would give everyone enough breathing room so we could go through that process, but it seems for whatever reason they decided to file this lawsuit now,” Ogaz said. “[The ACLU’s lawsuit is] aggressive, especially in light of the fact that I think we’ve been very cooperative with the ACLU — listening to their concerns, etcetera. I would think there would be more important civil rights issues for them to address than an ordinance that we said we would not enforce at this time.”

Temporary vs. Permanent Signs

The city’s sign ordinance states that political signs, referred to as “temporary” signs, are allowed if they’re removed within 15 days after an election. Political, or “permanent,” signs that don’t involve an election must be no larger than 1 x 1 feet.  

Schlosser writes that the city’s ordinance is an overly broad restriction on Milpitans. The basis of his argument is that Means and Bloomer have the right to post permanent signs in their own yards regardless of size or time constraints. He contends it’s a matter of freedom of speech and expression that’s protected by the First Amendment. 

However, Mayor Jose Esteves said he supports the sign ordinance and the restriction on temporary signs, reasoning that signs remaining between elections, like the June 5 Presidential Primary and the Nov. 6 elections, are “iffy” because of the amount of exposure they allow.

Esteves also said he doesn’t see a difference between permanent or temporary signs, and that the ordinance is about establishing a boundary that everyone has to follow. 

“It has nothing to do with rights. I comply with it myself,” Esteves said. “I’m happy with what we have. So far I don’t see a problem brought to me about ordinance with signs. We are being sued right and left, but it doesn’t mean we’re guilty of anything.”

The ordinance is considered a necessary evil of sorts, because Esteves said it wouldn't be good for the city to have a sign that’s not controlled.

“I don’t want a city that’s full of signs in the trees and the corner and everywhere," he said. "It’s not good representation of the city if we have signs everywhere unrestricted.”

Ogaz said he thinks there’s a possibility that the city may revise the ordinance, although he wouldn’t say in what respect it would change. 

“It’s an older ordinance and there are older areas that may be amended,” he said. 

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James King July 31, 2012 at 06:42 AM
"I would think there would be more important civil rights issues for them to address than an ordinance that we said we would not enforce at this time.” What a joke! If the ordinance YOU APPROVED is in violation of the US Constitution, then I can't think of anything more pressing. Of course, what do I know? Sounds to me, Mr. Ogaz is a bit disconnected but not surprising in the least. - James King, a proud defender and exerciser of the US Constitution!
Corinne Speckert July 31, 2012 at 08:00 PM
I think it will be interesting to see whether the ordinance is actually amended and how long it will take... I agree with the ACLU in terms that residents should be able to put up signs, as long as they're not offensive, without facing size and time constraints. Residents are the ones paying property taxes and maintaining their property, so how is it fair or correct to have the city decide what they're allowed to do on their own property? Plus, $700 to file an exception to the ordinance is pretty outrageous. Do you think $700 is too much, James? And what do you think about the 1 x 1 foot requirement for signs?
Yrngtmr July 31, 2012 at 09:22 PM
This could be an interesting debate, pitting neighbor against neighbor. For those that don't want restrictions on the size of the signs in a person's yard, imagine being their neighbor (also a property owning, tax paying citizen) and being forced to stare at a billboard size sign promoting whatever cause they happen to be displaying. What do you think then? "Oh gee, I'm glad they have the right to display that obnoxious and overly huge sign" or "why in the world doesn't the city restrict the size of the signs people can put in their yard?" I'm guessing it would be the latter. Time to look at compromises, like increasing the maximum size to something reasonable, like maybe 3' x 4'. Oh, and Corinne - who defines offensive? It's a pretty subjective definition, don't you think?
Allen King August 01, 2012 at 12:44 AM
Well, it is a bit disconcerting to see that the rights under the first amendment has been diluted over and over. At present, the law of the land is that the government can regulate "time, place and manner" of speech. This has been validated over and over by courts and I do tend to reluctantly agree to this rationale. Imagine every front yard having some stupid sign; how would the neighborhood look. Because Government cannot regulate the content, you can't stop people from putting up signs against say "gayism is bad" or "minorities are suckers" and so on. You can still say these things, but in a regulated manner, not in the front yard. So, no Mr. King, I don't believe that the ordinance is in violation of the constitution. All cities have same or similar regulations.
Jim August 03, 2012 at 09:56 PM
What's is ridiculous is that city government would take action against Mr. Means because a passerby thinks people passing by shouldn't be able to read his sign from the street. I'm a Democrat and find Republican signs very offensive and don't think they should be read from the street. Would city government act on that complaint? I shall no longer let political signs enter my front yard.
Allen King August 04, 2012 at 12:39 AM
Ms. Corinne Speckert, "offensive" is a relative term. Let me repeat the same example, a sign displaying "No gay marriage" may be offensive to some but may not be offensive to others. You should rethink what you wrote. Supreme court has ruled that a content based restriction is improper. Government can only restrict time, place and manner.
James King August 10, 2012 at 06:16 AM
@Allen - nice last name BTW! Here is the first amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Since this is a political position, I would argue that this would fall under "petition the Government for a redress of grievances." What I find interesting is that the City has already said they are not going to enforce the rule they have in place because it appears they understand they are probably pushing the line too far. “We thought the agreement not to enforce the ordinance would give everyone enough breathing room so we could go through that process, but it seems for whatever reason they decided to file this lawsuit now,” For the record, I don't have any signs in front of my house - with the exception of my US flag and I regard with distaste people who have numerous bumper stickers on their car to show me how interesting, pious or cool they are; especially firefighters and all their stickers, license plate frames and custom plates. However, as disinteresting their latest fad or cause may be to me, they have a right to express themselves.
James King August 10, 2012 at 06:25 AM
@Yrngtmr - I would also hate to look at huge, ugly signs all day long. My neighbor has a sign up about stopping Obama's healthcare. It's unsightly but I view it as his prerogative. Looking at an ugly sign may be as bad as dogs barking at all hours of the night for some. Would you live in a city that prohibited dog ownership? Yeeaahh!
James King August 10, 2012 at 06:27 AM
Allen, It is my understanding that the government can only restrict time, place and manner if there is an underlying concern for public safety. The government cannot restrict time, for example based on pure convenience. Please expound.

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