When the Scottsdale City Council votes on whether to eliminate political signs from public rights of way, it will vote on more than what was originally proposed.
The measure, scheduled for a meeting Dec. 6, targets political signs in its title, but if approved, it would ban all signs in public rights of way, except those put there by the government. Fulfilling a campaign promise, Councilman Ron McCullagh proposed the ordinance change, arguing that only the political signs clustered at Scottsdale intersections be removed.
Other members of the council, including Mayor Mary Manross, said it was important to eliminate the eyesores without affecting commercial signs placed in those spots.
But by the time the issue was brought to the city Planning Commission on Nov. 10, the ordinance change had been expanded to include all signs. The commission recommended the change with a unanimous vote.
"That was actually a decision the staff made after consulting with the legal staff," McCullagh said.
It is illegal to ban political signs or any one type of sign, legal analysts said.
"The First Amendment abhors content or viewpoint discrimination," said David Hudson Jr., a research analyst for the First Amendment Center.
In short, if a government wants to rid itself of political signs, it must do away with signs altogether. Municipalities cannot ban political signs on private property, but can limit their size and number, Hudson said.
While many analysts argue that a government can never ban political signs outright, Daniel Olson, assistant legal counsel to the League of Wisconsin Municipalities, said there has been no ruling that settles the matter. Determining whether political signs are a constitutionally protected expression of free speech or expendable litter may depend on what ground they are hammered into.
Streets and parks have greater constitutional protection when it comes to free speech because when the nation was founded, it was in those locations that political discussion was common, Olson said.
"The Supreme Court has never said that content-based regulation is prohibited. What they’ve said, generally, is that content-based regulation must meet a scrutiny analysis," Olson said.
The league is a consulting organization that provides legal and other information to Wisconsin cities.
That scrutiny analysis, Olson said, is a steep climb for governments arguing that political signs are a danger to the electoral system or a grave safety hazard. Typically, the arguments against political signs focus on aesthetics and traffic safety.
Scottsdale is avoiding that argument by targeting all signs.
"Banning them outright, I think . . . you’d run into insurmountable constitutional issues," Hudson said.