First Amendment sign challenge fails against Village of Scarsdale

You can challenge a village or town ordinance under the First Amendment if it unduly restricts political signage or vests too much discretion in local officials in determining which signage to allow or disallow. This case fails because the sign law was clear and did not allow the locals to censor political signage.

The case is Berg v. Village of Scarsdale, issued on December 3. In the district court, plaintiff actually prevailed on one of his claims, but lost the rest. In the Court of Appeals, that victory is taken away and plaintiff loses the entire case. 

The decision first considers whether the sign law was too vague under the First Amendment. If that were the case, plaintiff would win, as vagueness dissuades people from posting political or other noncommercial signs and also allows the local yokels to pull down signs based on an unclear statute. But this law is actually quite clear, the Court of Appeals (Pooler, Bianco and Komitee [D.J.]) says, in prohibiting signage in public rights-of-way, including sidewalks, telephone poles, or other objects along the street. The Supreme Court allows municipalities to regulate speech this way to eliminate distracting clutter along the road. Anyone reading this ordinance would know it prohibits signage along the right-of-way, the Court says, and if you want to do so, you have to get permit. Nor is the word "obstruct" vague under the First Amendment. Applying the dictionary definition, the Court says obstruct means blocking or impeding public space.

Plaintiff also says the village selectively enforced its sign law by bringing down the hammer on political signs but not commercial signs in the rights-of-way. But the statistics show otherwise, the Court says, and the village has actually favored political signs over commercial signs. The village actually kept records on all of this. Plaintiff tries to get around this by presenting photos of commercial signs that were allowed to tarnish rights-of-way. But the Court says this is not enough to win the case because we don't know if such lawbreaking was brought to the attention of municipal authorities who then ignored the complaints. In light of this evidence favoring the village, plaintiff's victory in the district court on the commercial-sign favoritism is vacated, as the evidence simply does not support that claim. And, the Court of Appeals says for good measure, while the village favored political over commercial signs, plaintiff would not have any standing to challenge that kind selective enforcement because he did not post any commercial signs.

The cases addressing political signage in the Second Circuit often result in a victory for the plaintiff, as town and village officials forget that the First Amendment governs such signage, and it is often not difficult to prove that political signage (which many people dislike since they overpopulate the community during election season) get the short end of the stick while commercial signage (which everyone loves because they promote local businesses) often has free reign. I have brought and won many of these cases, which municipal lawyers should read to avoid getting their communities sued. These cases include Knoeffler v. Town of Mamakating, 87 F. Supp. 2d 322 (SDNY 1998), Sugarman v. Village of Chester, 192 F. Supp. 3d 282 (SDNY 2002), and Lusk v. Village of Cold Spring, 418 F. Supp. 2d 314 (SDNY 2004), aff'd/rev'd 475 F.3d 480 (2d Cir. 2007).

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