Could a South Carolina town limit yard campaign signs to the 30 days before an election and seven days after it?

Plain-English summary

When asked in 2010, Cheraw had a rule allowing residential campaign signs only in the 30 days before an election and seven days afterward. The South Carolina Attorney General said a court would likely find a time limit aimed at political signs unconstitutional if comparable nonpolitical signs had no such limit. The opinion described its conclusion as a prediction: “we believe our courts would find” that restriction in violation of the First Amendment.

That prediction did not void the town's rule. The AG stressed that “only a court, not this Office, may declare an ordinance unconstitutional” and advised that Cheraw's ordinance remained valid and enforceable until a court ruled otherwise.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Could residents display campaign signs outside Cheraw's election window under this opinion? A: The AG predicted a political-sign time limit would violate the First Amendment if similar signs were unrestricted. It did not decide whether Cheraw treated other signs that way. The ordinance remained enforceable until a court ruled.

Why did the AG object to the sign rule?
A: The analysis compared political signs with similar signs allowed without time limits. Courts cited in the opinion treated such selective limits as regulation based on the message on the sign; aesthetics and traffic safety did not justify those restrictions in the cited decisions.

Did the Supreme Court decide this exact type of election-sign deadline? A: No. The AG said the Supreme Court's residential-sign decision did not specifically address durational limits for political signs. Its prediction drew on lower federal and state decisions and a 2008 South Carolina AG opinion.

Could the Attorney General strike down Cheraw's ordinance? A: No. The opinion said a court alone could declare it unconstitutional or prevent its enforcement.

Background and statutory framework

The town administrator described a rule allowing campaign signs no earlier than 30 days before an election and requiring removal within seven days after it. The AG began with the presumption that municipal ordinances are valid. It then applied its January 2008 Summerville opinion, which had viewed a political-sign-specific display period as constitutionally suspect when other signs could remain on display. The AG also cited a federal decision involving selective durational limits and concluded that no change in applicable law warranted departing from the earlier opinion.

Citations and references

The opinion discussed the First Amendment, City of Ladue v. Gilleo, McFadden v. City of Bridgeport, Sugarman v. Village of Chester, and its January 22, 2008 opinion. Its conclusion distinguished the AG's legal view from a court judgment invalidating the ordinance.

Official title

Opinion as to the validity of an ordinance enacted by the Town of Cheraw.

Requester

Michael D. Smith, Town Administrator, Town of Cheraw

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-23-2010-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2010/11/smith-m-d-os-9124-11-23-10-political-signs.pdf

Original opinion text

HENRY MCMASTER
ATIORNEY G ENERAL

November 23, 2010

Michael D. Smith, Town Administrator
Town of Cheraw
Post Office Box 219
Cheraw, South Carolina 29520
Dear Mr. Smith:
We received your letter requesting an opinion of this Office as to the validity of an ordinance enacted by the Town of Cheraw (the "Town"). In your letter, you provided the following information: The Town of Cheraw currently has an ordinance pertaining to political signs and when they can be placed in yards of residences. The current code maintains that no campaign signs can be erected more than 30 days prior to an election and have to be taken down no later than 7 days following an election. LawI Analysis

When addressing the validity of an ordinance, we begin with the presumption that the ordinance is valid. See Whaley v. Dorchester County Zoning Bd. of Appeals, 337 S.C. 568, 575, 524 S.E.2d 404, 408 (1999) ("A municipal ordinance is a legislative enactment and is presumed to be constitutional."). "Moreover, only a court, not this Office, may declare an ordinance unconstitutional." Op. S.C. Atty. Gen., April 9, 2010. Although we found no South Carolina case law governing the validity of durational limitations on political signs, this Office issued an opinion in 2008 addressing this issue. Op. S.C. Atty. Gen., January 22, 2008. In that opinion, we considered the constitutionality of an ordinance enacted by the town of Summerville prohibiting the display of political campaign signs more than 30 days prior to an election. Id. We began with the presumption that the ordinance is constitutional. Id. However, we noted that "some courts do not afford a municipal ordinance (or statute) the usual presumption of validity in situations in which First Amendment rights are implicated thereby." Id. (citing Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd., 276 F.3d 876, 879 (6th Cir. 2002)).

REMBERT

c. DENNIS B u n.OJNG • Posr OFFICE Box 11549 • COLUMBIA, SC 292Jl-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Smith
Page2
November 23, 2010
With that caveat in mind, we looked at several federal court decisions in analyzing the question of whether a local government may restrict the time frame in which a political sign may be displayed. Id. We first looked at the Supreme Court's decision in City of Ladue v. Gilleo, 512 U.S. 43 (1994). Id. In regard to that decision, we stated: In City of Ladue, the United States Supreme Court invalidated an ordinance which banned all residential signs but those falling within one often exceptions. The Supreme Court acknowledged that, while signs are protected by the Free Speech Clause of the First Amendment, such signs "pose distinctive problems that are subject to municipalities' police powers." Said the Court,
[u]nlike oral speech, signs take up space and may obstruct
views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs, just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise. 512 U.S. at 48. Relying principally upon its decision in Linmark Associates Inc. v. Willingboro, 431 U.S. 85 (1977), which had held that Linmark's interest in maintaining a stable, racially integrated neighborhood was not sufficient to uphold a prohibition ofresidential "For Sale" signs, the Court in Ladue concluded that "[t]he impact on free communication ofLadue's broad sign prohibition, moreover, is manifestly greater than in Linmark." In the Court's view, " ... Laduehas almost completely foreclosed a venerable means of communication that is both unique and important. It has totally foreclosed that medium to political, religious or personal messages." Id. at 54. Rejecting the City's argument that the Ordinance "is a mere regulation of the time, place, or manner' of speech" because residents possess alternative means of presenting their message, the Court found that "[i]n this case, we are not persuaded that adequate substitutes exist for the important medium of speech that Ladue has closed off." Id. at 56.

We acknowledged that the Court in City of Ladue did not specifically address the constitutionality of a time restriction on the display of political signs, but we noted that several other federal and state courts rely on Ladue to conclude that these types of temporal ordinances violate the

Mr. Smith
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November 23, 2010

First Amendment. Id. One example explained in our opinion was the Northern District of West Virginia's decision in McFadden v. City of Bridgeport, 422 F.Supp.2d 659 (N.D.W.Va. 2006). Id. We explained that decision as follows:
[I]n McFadden v. City of Bridgeport, supra, the District Court addressed the constitutionality of an ordinance which allowed unpermitted political signs only 30days prior to an election and 48 hours thereafter. The Court concluded that this provision "is content-based since the Ordinance's temporal restrictions apply only to limited categories of signs based on what those signs say ... " and because "the City's asserted interests in regulating temporary and political signs are not compelling." 422 F.Supp.2d at 662. Rejecting the argument that the Ordinance was "content-neutral because its
[City's] interests in aesthetics and traffic safety are not related to the content of the temporary [and political] signs," the Court noted that the Town provides no evidence that signs carrying political messages and signs relating to specific events give rise to adverse secondary effects that differ in any way from similarly constructed signs carrying messages Bridgeport allows to be permanently displayed. Political signs and other signs defined as temporary by the City of Bridgeport are regulated differently from other signs based on what they say. Section 1325.07 of Bridgeport's sign ordinance is a content-based regulation of speech. 422 F.Supp.2dat674. (emphasis added). Moreover, in the McFadden Court's view, the City's asserted interests justifying imposing of the restrictions - aesthetics and traffic safety - were "not compelling, and
. . . not the least restrictive alternatives available to achieve those interests." Accordingly, the Court concluded that the Ordinance "is an impermissible content-based regulation of speech that facially violates the First Amendment of the Constitution." Id. at 675. Id. We also noted an Ohio state court decision finding an ordinance temporal ordinance unconstitutional. Id. (citing City of Painesville Bldg. Dep 't v. Dworkin & Berstein, 73 3 N .E.2d 1152 (Ohio 2000)). Based on our research, we concluded as follows:

Mr. Smith
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November 23, 2010
It is our opinion that the political sign portion of the Summerville Ordinance is constitutionally suspect under the First Amendment. The Ordinance restricts the time in which political signs may be freely displayed (30 days prior to an election) while placing no such time constraints upon other types of signs (e.g. "For Sale") which may be displayed at any time without a permit. While the United States Supreme Court has not specifically addressed the validity of durational restrictions upon political signs, such as are imposed by the Summerville Ordinance, a number of lower federal courts, as well as state courts, have read City of Ladue, supra as sufficiently broad to strike down such provisions. These courts have concluded that such temporal restrictions upon political signs, but not upon other types of signs, are content-based, and that the interests served by such restrictions (aesthetics or traffic control) are not compelling interests pursuant to the state or local government's police power. Moreover, these courts conclude that placing time restrictions upon the display of political signs is not the least restrictive alternative available to achieve these interests. As the Ohio Supreme Court concluded in the Painesville case, courts have characterized ordinances which impose a time restriction upon when political signs may be displayed "as imposing the equivalent of a year round ban on political signs posting, which is simply temporarily suspended for the prescribed period surrounding an election." 733 N.E.2d at 1158.

While it is our opinion that this restriction in the Ordinance is constitutionally suspect, we reiterate that only a court may declare the ordinance either facially unconstitutional or unconstitutional as applied. And only a court may prevent enforcement of such ordinance. As we reiterate, it is solely within the province of the courts, not this Office, to declare an act or an ordinance constitutionally invalid.

This Office recognizes a long-standing rule that we will not overrule a prior opinion unless it is clearly erroneous or a change occurred in the applicable law. Op. S.C. Atty. Gen., March 4, 2009. We believe our 2008 opinion is well reasoned and we have not found any changes in the applicable law since that opinion. In addition, we discovered another court decision supporting the conclusion reached in our 2008 opinion. In Sugarman v. Village of Chester, 192 F.Supp. 2d 282 (S.D.N.Y. 2002), the District Court for the Southern District of New York considered the constitutionality of several municipal ordinances imposing durational and other constraints on political signs. The Court explained that municipalities "may not single out political signs for

Mr. Smith
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November 23, 2010

differential treatment." Id. at 297. Moreover, the Court quoted language from its decision in Knoefflerv. Town of Mamakating, 87 F.Supp.2d 322, 333 (S.D.N.Y. 2000) stating: "Content-based 'durational limits on signs have been repeatedly declared unconstitutional."' Id. The Court found the durational limitations were based on the content of the sign and that the municipalities failed to demonstrate a compelling interest for these limitations. Id. Thus, the Court found the durational limitation unconstitutional under the First Amendment. Id.

Conclusion
Based on the authority cited in our 2008 opinion and further supported by the Court's holding in Sugarman, we believe our courts would find an ordinance that restricts the duration in which a political sign may be posted, when similar signs are not restricted, volative of the First Amendment. However, as noted above, only a court, not this Office, may declare an ordinance unconstitutional. As such, we advise that the ordinance referenced in your letter remains valid and enforceable until a court rules otherwise. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General

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Milling
Assistant Attorney General