(This column was co-authored by Elizabeth Velez, ACLU of New Hampshire Legal Intern (Summer 2015) and was republished from the July 24, 2015 edition of the New Hampshire Union Leader.)
And, as the U.S. Supreme Court explained more than 20 years ago, political signs constitute speech integral to our democracy. They are a cheap and convenient form of communication for which there may be no practical substitute.
But what laws control just where those signs can be placed? Can a town control how big a sign can be? Or how long it can stay there? What if a town wants to promote political engagement while avoiding the clutter of signs about yard sales, controversial social issues and open houses? Can a town enact ordinances allowing outdoor signs about certain topics but not others? Last month, the U.S. Supreme Court clarified this confusing landscape in the case Reed v. Town of Gilbert.
Gilbert, a small community in Arizona, prohibited the display of outdoor signs without a permit unless the sign fell into one of 23 possible categories, including political, ideological and temporary directional signs. The town treated these categories of signs differently. For example, ideological signs had no limits, while political signs were limited to 60 days before and 15 days after an election. Temporary directional signs were also limited to just 12 hours before to one hour after the event.
The pastor of a small church in Gilbert — which lacked its own building and used temporary directional signs to direct parishioners to its various meeting places — sued the town, alleging it violated the First Amendment by enacting a law that preferred political speech over the church’s speech.
The primary question before the Supreme Court in Reed was whether the town, by treating some categories of speech differently from other categories of speech, was engaging in “content based” regulation, or whether the law was “content neutral” simply because it was not enacted with the intent to censor the church and other specific messages. This distinction is important because a law is presumptively unconstitutional if it is deemed “content based.”
In its decision, the Supreme Court thankfully clarified the law in a way that favors free speech. According to the court, Gilbert’s sign regulation is content based because its restrictions depend entirely on the “communicative content of the sign.” Put another way, the court ruled that whether a law is “content based” — and, thus, presumptively unconstitutional — is dependent on the law’s content, not on the motivations of the politicians who enacted the law.
This result may seem obvious, but the law was very murky before the Reed decision. And this decision provides important breathing space for the First Amendment to thrive. If the government must have an intent to censor for a law to be deemed content based, the government would have far greater latitude to suppress the speech of disfavored groups.
Just think about it. Government officials who want to censor certain categories of speech could simply hide these nefarious motives behind seemingly neutral justifications (i.e., public safety, preventing crime, etc.) and, voila, the law would now no longer be content based.
So what does this all mean for New Hampshire? A lot. Until just recently, an ordinance in Rochester enacted strict size regulations that applied to political signs. However, just days before the Reed decision, Rochester voted to remove this content-based speech restriction. We encourage other municipalities to check their sign regulations to ensure that they are not engaging in unconstitutional censorship.
The Reed decision also affirms the ACLU’s position in an ongoing lawsuit challenging a New Hampshire law that makes it a violation-level offense to willfully publish a picture of a marked ballot on social media. In the case, the ACLU contends that this “ballot selfie” law is an unconstitutional, content-based speech regulation. This speech restriction, for example, forbids an excited 18-year-old or recently naturalized U.S. citizen from celebrating their patriotism by taking a picture of their first completed ballot and sharing it on Facebook. This case is currently pending in federal court.
Almost 90 years ago, U.S. Supreme Court Justice Louis D. Brandeis wisely wrote that the “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” This was true then, and it is true now as New Hampshire gears up for primary season.