PHILADELPHIA – A federal appellate court has decreed that the Borough of Camp Hill’s regulations on lawn signs related to personal expression – and often, politics – are unconstitutional.
On May 9, U.S. Court of Appeals for the Third Circuit judges Kent A. Jordan, Stephanos Bibas and Thomas L. Ambro affirmed a prior granting of summary judgment in favor of plaintiffs Camp Hill Borough Republican Association, Caroline Machiraju and Katherine Pearson, and against defendants Borough of Camp Hill, its Council President Alissa Packer, its Borough Manager Sarah Gibson and its Code Enforcement Officer Colton Weichman.
The purpose of the sign ordinance, adopted by the Camp Hill Borough Council in December 2021, is to regulate how, when and where signs are placed, and not limit what the signs themselves depict.
But the plaintiffs said that the ordinance, which limits the number of signs which may be placed on a citizen’s property – and carries a punitive $1,000 fine per instance, per day for violating it and failing to respond to subsequent code enforcement notices – are unconstitutional under the First Amendment.
Both Machiraju and Pearson were cited for violating the ordinance, as Machiraju had placed more than two political yards signs (the allowable limit prescribed by the ordinance) on her lawn and while Pearson had placed only two signs on her property, she put them out more than 60 days prior to Election Day (also prohibited by the ordinance).
While the initial filing of the suit was accompanied by a motion from the plaintiffs for a temporary restraining order and preliminary injunction, this was rescinded two days later on Oct. 27, 2022 without prejudice – through a stipulated injunction agreed to by all parties, but one which stops short of admitting liability.
According to that stipulation, the Borough of Camp Hill decreed it will not enforce the two-sign limit and sign visibility 60 days prior to Election Day-window of the sign ordinance, until Jan. 31 of next year, in order to provide time for litigation.
However, all parties further agreed that the Borough of Camp Hill retains its right to enforce all other provisions of the sign ordinance, including but not limited to restrictions as to the size of signs, and that the agreement does not constitute a waiver of the Borough’s legal defenses.
“Finally, the parties agree that, as to the issuance of this stipulated preliminary injunction order, the plaintiffs’ obligation pursuant to Federal Rule of Civil Procedure 65(c) to provide security in amount that is proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained is waived,” the agreement stated.
After an amended complaint was filed in the case on Nov. 14, 2022, the defendants answered the complaint two weeks later, on Nov. 28, 2022, and denied the allegations that they violated the plaintiffs’ First Amendment rights under the U.S. Constitution.
“Camp Hill Borough’s Sign Ordinance defines and regulates ‘Temporary Signs,’ and ‘Personal Expression Signs.’ The Sign Ordinance does not regulate ‘Political Yard Signs,’ which are not referenced in any portion of the Sign Ordinance. Plaintiffs manufactured the term ‘Political Yard Signs’ and define them as ‘promoting or opposing candidates for elective office and political issues or other similar expressive content.’ In reality, the Camp Hill Borough Sign Ordinance creates no such regulations based on communicative conduct, and the application of the Sign Ordinance’s ‘Personal Expression Signs’ regulations does not depend upon the topic discussed or idea or message expressed,” per the defense’s answer.
“Defendant Weichman in his capacity as Camp Hill Borough Zoning Officer issued a number of courtesy enforcement notices in August of 2022. Over 25 percent of those issued notices relate to provisions of the Sign Ordinance that are not in dispute in the current litigation. Moreover, these notices were indeed a courtesy and not formal ‘Notices of Violation.’ The Zoning Officer understood that issuance of these courtesy notices would be met with questions because this was the first general election cycle in which the new Camp Hill Borough Sign Ordinance would be in effect.”
The defendants also put forth 19 separate affirmative defenses in the case.
“Plaintiffs’ amended complaint fails to state any claims upon which relief can be granted under 42 U.S.C. Sections 1983 and 1988, the First Amendment of the United States Constitution, the Due Process clause of the Constitution, and/or any possible cause of action or claim. Defendants assert all defenses, immunities and limitations of damages available to them under the Civil Rights Act of 1871 and 42 U.S.C. Section 1983. Defendant Borough of Camp Hill’s Sign Ordinance is facially constitutional and does not violate plaintiffs’ and/or the Borough of Camp Hill residents’ First Amendment rights and/or Due Process rights. Defendant Borough of Camp Hill’s Sign Ordinance is content neutral,” the defenses stated, in part.
“Section 805.C.3.d of Defendant Borough of Camp Hill’s Sign Ordinance is not constitutionally void for vagueness. Defendants have not applied the Sign Ordinance in an unconstitutional manner as it relates to plaintiffs. Defendants have not and do not employ any custom and/or policy of applying the Sign Ordinance in a manner that violated plaintiffs’ First Amendment rights. Plaintiffs’ as applied 42 U.S.C. Section 1983 First Amendment violation claims against defendant Borough of Camp Hill and defendants Packer, Gibson and Weichman in their official capacity fail because plaintiffs have not and cannot plead municipal liability pursuant to Monell v. Dept. of Social Services of City of New York.”
The answer had further argued that defendants Packer, Gibson and Weichman are entitled to qualified immunity.
After each side filed cross-motions for summary judgment on Feb. 6, U.S. District Court for the Middle District of Pennsylvania Judge Jennifer P. Wilson found in favor of the plaintiffs on March 29, 2023, and granted their summary judgment motion.
(Wilson additionally found that the Camp Hill Borough Republican Association could not sue on its own behalf, or on behalf of its members.)
“Here, all temporary signs on residential lots are subject to a two-sign limit. But there are no similar numerical limits for other types of signage, which are defined by the content of the message conveyed. Specifically, security and warning signs, holiday decorations and directional signs on residential properties have no number limits. The court concludes that, by providing a two-sign limit for some signs, but not others, based on the messages they convey, Section 805(C)(1)(a) is content-based and subject to strict scrutiny,” Wilson said.
“As with the durational limitation, it is the Borough’s burden to show a compelling government interest. Because they have not convincingly argued that traffic safety and aesthetics are a compelling government interest, Section 805(C)(1)(a) fails strict scrutiny. Section 805(C)(1)(a) unconstitutionally violates the First Amendment.”
The Borough of Camp Hill then appealed to the Third Circuit.
UPDATE
In the Third Circuit’s recent opinion, authored by Bibas, the federal appellate bench found that the Borough’s decision to “[classify] some signs based on their content [was] a red flag.”
“The ordinance limits the size, height, timing and illumination of Personal Expression Signs more strictly than it limits other Temporary Signs. And those harsher rules apply because Personal Expression Signs express non-commercial messages. Categorizing speech as non-commercial is categorizing it by content. By favoring commercial expression over non-commercial, the ordinance targets speech based on its message. So it is not content neutral. It distinguishes commercial from non-commercial speech. Yet to tell if speech is commercial, we ask, for instance, if it advertises a product, uses that product’s name and furthers the speaker’s economic goals. Each of these inquiries requires judging the speech’s content,” Bibas said.
“And because categorizing a sign as non-commercial requires a content-based judgment, the Personal Expression category cannot be a time-place-or-manner restriction. What is more, the category treats non-commercial speech worse than commercial speech. Under the plain text of the ordinance, commercial signs may be put up for 30 days, taken down and then put up again. But Personal Expression Signs about events may not be put up more than 60 days in advance of the event; and unlike commercial signs, they may not be lit up or taller than six feet. That gets the doctrine backward. Historically, the government has had more leeway to regulate commercial speech than other kinds of speech. Yet this ordinance disfavors non-commercial speech, which has never enjoyed less protection. So the Borough cannot rely on the commercial-speech doctrine, and the Personal Expression category faces strict scrutiny.”
Bibas went on to say that holiday signs were treated better under the regulations than other types.
“The Holiday Decorations category discriminates against signs based not only on their content, but also their viewpoint. To get special treatment, a sign must celebrate the holiday. Imagine two Veterans Day messages. First, a veteran puts up a sign reading: ‘Support Our Troops and Veterans.’ Then a pacifist responds with his own sign: ‘War Is Not the Answer.’ A zoning officer would likely treat the first sign as celebrating the holiday because its message is positive. But he might well treat the second sign’s lament differently,” Bibas said.
“The Holiday Decorations provisions are not challenged in this suit, but they raise constitutional concerns that infect the Temporary Sign category. A Temporary Sign is defined by what it is not – it does not celebrate a holiday. That is a subject-matter distinction, separating out Holiday Decorations as a content-based (and viewpoint-based) subset. And the two categories have different limits on size, number, and duration based on what the sign says. When an ordinance singles out one content-based category for better treatment, the remaining catch-all category becomes content based too. So by favoring holiday messages, the ordinance lets enforcement officers discriminate based on a sign’s subject matter. Like the distinction between commercial and noncommercial messages, the distinction between holiday and non-holiday messages is content based. The Temporary Signs category must also face strict scrutiny.”
It is that same strict scrutiny, Bibas wrote, that defeats the ordinance.
“Camp Hill invokes two interests that it claims compelled it to limit speech: Traffic safety and aesthetics. Though both are legitimate interests, we have never held them to be compelling. Even if both interests were compelling, the ordinance would ‘fail as hopelessly underinclusive.’ Camp Hill bears the burden of proving that the restrictions were tailored both to serve those interests and to curtail speech as little as possible. But it was not tailored to those interests, let alone narrowly tailored. To show that lawn signs are ugly and unsafe, the Borough relies on Pearson and Machiraju’s depositions. True, both said they did not like yards overflowing with signs with which they disagreed. And they admitted that older signs had fallen apart or been knocked over by the wind. But their testimony does not prove that the ordinance combated these concerns effectively. And without that evidence, Camp Hill cannot show that it tailored the ordinance to promote traffic safety or preserve aesthetic appeal. Plus, narrow tailoring requires using the ‘least restrictive means among available, effective alternatives.’ This ordinance does not. As for aesthetics, Personal Expression Signs are ‘no greater an eyesore’ than commercial lawn signs,” Bibas stated.
“Camp Hill gives no reason to think that holiday signs are necessarily more attractive. Maybe people prefer inflatable Santas, Frostys and the like to lawn signs, but Camp Hill failed to show that. And, as written, the favored Holiday Decorations category includes lawn signs with holiday messages. We cannot say that one lawn sign is more aesthetically pleasing than another based on its message. (That approach would build an inappropriate content judgment into narrow tailoring.) Instead, Camp Hill could have applied the same number and time limits to all lawn signs. Its contrived approach is not narrowly tailored to preserve the town’s aesthetics. So too with traffic safety. Like other lawn signs, commercial and holiday signs can fall down and fall apart. They are also as likely, if not more likely, to distract drivers. If anything, Camp Hill’s preferential treatment of Holiday Decorations undermines its purported interest in traffic safety. Unchecked, residents filled their front yards with gardens of illuminated Halloween creatures, tree-sized plastic skeletons and large reindeer. These spooky spirits and skeletons may startle drivers, and Rudolph with his nose so bright may blind them. So this arrangement cannot be the least restrictive way to protect drivers and pedestrians. Going forward, Camp Hill has constitutional options. It may restrict signs based on time, place, or manner regardless of their content. But without a much stronger showing, it may not treat some speech worse based on its content.”
U.S. Court of Appeals for the Third Circuit case 23-1746
U.S. District Court for the Middle District of Pennsylvania case 1:22-cv-01679
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com