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HomeMy WebLinkAbout21 SIGNS IN PUBLIC RIGHTS OF WAY 04-17-06 AGENDA REPORT MEETING DATE: APRIL 17,2006 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: DOUGLAS C. HOLLAND, CITY ATTORNEY SUBJECT: SIGNS IN PUBLIC RIGHTS OF WAY RECOMMENDATION: Provide staff direction regarding the preparation of an ordinance regulating two kinds of signs in the public right of way: temporary signs physically planted in the right of way or fixed to public improvements and facilities; and (2) signs carried by human beings, also referred to as "human signs." SUMMARY: Although streets and public rights of way are viewed as traditional public forums and the City is restricted in the way it can regulate the exercise of speech in streets and public rights of way. The Council can not regulate the content of signs; however, the City has the authority to adopt and enforce reasonable time, place, and manner regulations for such activities. The Council has the authority to prohibit signs installed in the right of way or fixed to public facilities such as street lights and utility poles. The City Council has the authority to regulate the physical characteristics of the human signs and the manner in which human signs are displayed. INTRODUCTION: The City Council will commence a review and discussion of the City's ordinance regarding signs in the public right of way at its council meeting on March 20, 2006. To appreciate your options, we believe you must first understand that there are significant constitutional considerations that greatly affect the discussion. We must recognize that speech takes several forms. Speech is more than just vocal expressions and voices engaged in the expression of ideas and opinions. Speech includes newspapers, leaflets, and for the purposes of the Council's immediate consideration, speech includes signs. We must also recognize that our federal and state constitutions protect freedom of speech. We should also recognize that this right is not absolute. Simply stated, our Page 2 residents enjoy constitutional protections relating to free speech whenever the City acts as a regulator of citizen conduct or in its capacity as a property owner. The degree of protection, the City's ability to effectively regulate activity, and the standard of judicial review applied to the City's regulations, is dependent upon the City's interest and role in each situation. Public Forum The federal and state Supreme Courts evaluate a City's programs that regulate or affect speech through what is described as a "forum test." The courts recognize that protected speech is not equally permissible on all city property on a 24/7 basis. "Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or the disruption that might be cause by the speaker's activities. Recognizing the Government no less than a private owner of property has power to preserve the property under its control for the use to which it is lawfully dedicated, the Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum." [This quote is from the California Supreme Court case of Clark v. Burleigh (1992) 4 Cal. 4th 474, 482, citing the United States Supreme Court case of Cornelius v. NAACP Legal Defense and Education Fund.] Although there are different types of forums, when the City is attempting to regulate speech in streets and the public rights of way it is affecting what the courts recognize as a "traditional public forum," a forum that is a place that has a long tradition of being used by the public for the free exchange of ideas. Any ordinance that regulates the content of speech in a traditional public forum will be subject to what the courts call "strict scrutiny" and the exercise of such rights can only be excluded or regulated when (1) the exclusion or regulation is necessary to serve a compelling government interest and (2) the exclusion or regulation is narrowly drawn to achieve that compelling government interest. Type of Speech Generally speaking (pun intended), there are two types of speech: Commercial Speech and Non-commercial speech. Commercial speech is not entitled to the same level of protection as non-commercial speech only under certain circumstances. For example, a regulation designed to prevent false or misleading advertising or to alleviate distinctive adverse effects of specific speech can be enforced. When commercial speech is treated differently from non-commercial speech for reasons wholly unrelated to a particular interest that the City asserts is being affected, then the regulation will fail to meet First Amendment standards. For example, an attempt to ban news racks containing commercial publications and allow non-commercial publications would not pass constitutional muster. Page 3 And as you can certainly imagine, any attempt to regulate non-commercial speech, such as classic political speech, will be subject to the most exacting judicial scrutiny. Time, Place, and Manner Restrictions The key to dealing with free speech activities is to regulate time, place, and manner of the activity and avoid the temptation to regulate or consider content. Indeed, content neutrality is absolutely essential because courts will find regulations enacted for the purpose of restraining speech on the basis of content to presumptively violate the First Amendment. Content neutral time, place, and manner regulations will be found acceptable so long as the regulations serve a substantial government interest and the regulation leaves open ample alternative channels of communication. There are a number of situations where governmental regulations of speech in the public rights of way have been judicially validated. The best examples involve the application and implementation of time, place, and manner regulations of newsracks. These regulations typically involve height, number, color, location of the news rack and do not consider content. Although the case does not involve activity in a public right of way, the recent Garden Grove experience in dealing with cybercafes, an enterprise that the court found was a first amendment protected activity, is instructive. Garden Grove adopted an ordinance that did two things. First of all, the ordinance granted discretion to the City Planner and the Planning Commission to impose conditions when issuing a conditional use permit for cybercafes. This aspect of the ordinance was found to be unconstitutional. The ordinance also imposed operational regulations including daytime curfew, number of employees, and security guard and video surveillance requirements. These provisions were upheld as reasonable time, place, or manner restrictions. (Vo v. City of Garden Grove (2004), 115 Cal. App. 4th 425.) Signs At your Council meeting on the 17th, we will go into more detail regarding sign regulations specifics. We will note, however, that the most defensible approaches will involve an appreciation that the most effective and enforceable ordinance should be content neutral, and predicated on objective, non-discretionary criteria such as size, height, number, location, physical attributes, and perhaps certain kinds of overt conduct.