Solon’s ordinance regulating political or opinion signs would likely be ruled unconstitutional if challenged in the courts, city officials were advised last week.
Attorney Ken Myers, a resident of Solon, weighed in on the matter for the Planning Commission. City Prosecutor Lon Stolarsky and Law Director Thomas G. Lobe had asked for Mr. Myers’ analysis of the ordinance, which has been under review by the commission. The review followed complaints from residents centering on signage linked to last November’s election.
Complaints revolved around signs being up too early, the size of some and the quantity in residential yards.
Mr. Myers had litigated sign ordinance cases in both Cleveland Heights and Middleburg Heights.
“How do we avoid getting sued as a city?” Mr. Myers said. “That’s a valid concern.”
Mr. Myers said he reviewed the city’s ordinance as it stands and the law, as well as what courts have said as to what is permissible and what is not. He also reviewed the ordinances in comparable cities.
“Basically, I found that the city’s ordinance as it relates to political or opinion signs as it stands would be ruled unconstitutional if someone challenged it and went to court,” he said.
Garfield Heights had a similar ordinance that was challenged several years ago, he said.
It was ultimately ruled unconstitutional and that case provides the court precedence, Mr. Myers continued, of what the court looks for if an ordinance is unconstitutional.
Solon’s ordinance distinguishes between opinion signs and commercial signs and restricts opinion signs more, he explained.
“What the court said is you can’t treat political speech more harshly than non-political speech,” Mr. Myers said. That includes specific content of the sign, the topic of the sign and by labeling it as opinion.
“You created a topic and that topic is highly protected under the First Amendment,” he said.
At the minimum, Mr. Myers recommended changing the wording of the ordinance, but also said the meaning and enforcement mechanisms must change.
“If it is enforced as it stands, you can run into problems,” he said.
Mr. Myers suggested two different approaches, one general and one more detailed. The general approach involves including a couple of paragraphs setting forth the provisions of free speech and then including a safety component. Safety issues might address issues of not obstructing views as well as the sign being in good working order. But no reference can be made to the type of sign or the content, he noted.
The detailed approach would include a series of procedures to address how complaints would be handled.
“The city’s main goal is to promote free speech but also avoid a situation where the city goes into litigation,” Mr. Myers said. Even if the city were successful in court, it is a costly endeavor.
“It’s very expensive and things are up in the air in litigation,” he said. “You don’t want to get residents so angry they choose to go to court.”
City Council and the mayor must determine the best approach to addressing complaints, he said.
“The bottom line is there are several principles you want to adhere to, [and] to make sure that you’re both taking care of your constitutional obligations and your residents’ rights, but also reducing the opportunity” for anyone to sue.
Mr. Myers said when he drives through communities during elections and sees lots of signs, he often says, “good, they are expressing their views and promoting their constitutional rights and candidates and issues they want.
“I understand at some point it becomes too much in terms of size of signs and location in the yard, and those things need addressed but minimally,” Mr. Myers said. “I feel the complaints you are getting are strictly political.”
He said residents may not be complaining a sign is up too long, but it’s really the candidate they have issue with.
“You want to avoid getting in the middle of that,” he said.
“You hit the nail on the head,” Mayor Edward H. Kraus said, adding that Solon has not fully enforced the ordinance due to concerns over constitutional issues.
The mayor favored the detailed approach.
The matter will be set for public hearing at the Feb. 23 meeting.