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A Tosa State of Mind

Alderman Dennis McBride represents Wauwatosa's 4th District. An attorney and graduate of Wauwatosa East High School, Ald. McBride strives to be an effective, thoughtful, and nonpartisan representative for his constituents and for his hometown.

Signs, signs, everywhere a sign

Several times recently, neighbors have called to ask what can be done about all the yard signs that other neighbors are posting.  They're not upset about non-political signs; it's the political ones they don't like.

 

Like everyone else, I'm worn out by the endless political campaigning and the negativity on both sides of the partisan divide.  I asked the City Attorney whether the City can require neighbors to remove yard signs.  The short answer is “no.”  Here is what he told me:

 

Background.  About 10 years ago, a Wauwatosan challenged the City's election sign ordinance in Milwaukee County Circuit Court.  Eventually the case was settled in front of Judge Timothy Dugan, who issued a dismissal order which, when combined with other counts which were dismissed earlier in the lawsuit, provide a road map as to City authority over regulation of residential signs.  

 

Essentially, Judge Dugan ruled that the City's regulations governing the size, placement, and numbers of election signs in residential districts were unenforceable because the regulations conflicted with Wisconsin law and the U.S. Constitution.  In 2005, the City re-wrote its residential sign law to conform with the Judge Dugan's order. 


Two Kinds of Signs.  Under the City of Wauwatosa’s Code of Ordinances, there are now two kinds of residential signs – “election” and “temporary.”  In residential districts, a home can display “temporary signs” and “election signs in compliance with [City Code] Section 15.14.290.”   

“Election signs” are temporary signs “supporting a candidate for office or urging action on any other matter on the ballot of a primary, general or special election.”  (See Code § 15.14.020.)  “Election signs” relate to specific candidates or referendum issues on a scheduled ballot, and are regulated under what the U.S. Supreme Court calls “time, place, and manner” restrictions.  Such restrictions tell you when, where, and how signs may be posted.


All other yard signs are considered “temporary signs” – signs which are not permanently attached to a residence – and are allowed to be in place for up to six months.  Because such signs are not related to a specific election that is actually scheduled, they are not considered “election” signs even if they state a political message (e.g., “Elect Alberta Darling” or “Don’t Tread on Me”).


Temporary Signs.  Wauwatosan
s put up yard signs all the time.  Most don’t cause much concern, because, although they are identical in size and placement to election signs, they don’t make political statements but instead promote causes like parochial schools, the Tosa Farmer’s Market, or the Hoyt Park pool, or ask motorists to “Slow Down for Children.”  


As noted above, some political signs may state a viewpoint which might be relevant to an upcoming election, or might predict the owner’s viewpoint for an upcoming election, but they are allowed as temporary signs because they are not related to a specific election or a candidate during a campaign period.  Such signs only are restricted in the amount of time in which they can be posted – six months – with other general limitations like not blocking building access or impeding traffic and pedestrian safety and structural soundness, and so on.


Election Signs.  There is no clear legal guidance as to how long “election signs” may be left in place after the “campaign period.”  During the lawsuit, Judge Dugan held that the City’s then-existing time restrictions (60 days before and seven days after the election) were invalid, so that language was removed from the City ordinance.  Currently, after an election the City considers yard signs to transition from being “election” signs to “temporary” signs,” and addresses them accordingly.

It should be noted that it is legally valid to post election signs anywhere they might influence eligible voters, even outside the district where the election will take place.  So it's OK to have an "Elect Alberta Darling" sign on a Wauwatosa lawn even if her Senate district is 10 miles away.


Summary:  The City can’t do anything to restrict residents from placing “temporary” signs in their yards until six months has elapsed, and can’t require residents to remove “election” signs until six months after an election occurs.


For example, for “Recall Scott Walker” signs posted on lawns on May 3, 2011, the six-month period will end on November 3, 2011.  However, under Wisconsin law, anti-Walker partisans can start circulating recall petitions on November 3, 2011 – 60 days prior to the one-year anniversary of Governor Walker’s inauguration.  If a recall campaign begins, the "temporary" recall signs will become "election" signs.  Thus, the recall signs posted on lawns on May 3, 2011, could remain up until six months after any recall election, unless no recall campaign begins in November.

 

This discussion might not make anyone happy, but it shows how legally difficult it can be to balance everyone’s rights to free speech under the First Amendment to the U.S. Constitution.  Having to read or hear opinions we don’t like is the price we pay for living in a democracy.  As U.S. Supreme Court Justice Oliver Wendell Holmes wrote in 1929, "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought – not free thought for those who agree with us, but freedom for the thought that we hate."

It’s just too bad that, unlike TVs and radios, yard signs don’t come with on/off switches. 

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