Matt Coyne, mcoyne@lohud.com Judge says a town law used to prosecute Carmel resident Carla Marin violates First Amendment
U.S. District Judge Kenneth Karas said the laws, which set rules for any temporary, publicly viewable signs, violated residents' First Amendment rights, as they governed the political signs that pop up before elections, but left out other signs that advertise events.
“Political signs are the most important speech we have," said Stephen Bergstein, attorney for Carla Marin, a Carmel resident who brought the suit against the town. “What (Karas is) saying is that, if the statue restricts political speech — and they always do — the town still needs a very good reason to justify that restriction."
Southeast town Supervisor Tony Hay could not be reached for comment.
Marin, an active member of the Republican Party who owns property along Route 312 in Southeast, was prosecuted in Southeast Town Court in 2011, with the town alleging she had failed to take down a political sign more than five days after a primary. The law permitted signs to be up three weeks before an election and five days after.
The charges were dismissed, but Marin alleged the law, enacted in 2004 and revised in 2011, 2013 and 2014, had a chilling effect on her political free speech. She said she declined to put up signs in the run up to other elections, despite being asked.
According to Karas' ruling, Marin, who practices real estate law, declined to put up signs because she found it "humiliating" to defend herself in a court in which she appears.
“What’s really going on is the Town Board, they really just don’t like political signs," Bergstein said. "(To them) there’s too many of them, they think they’re ugly, and they don’t like them being up any more than they have to be. But it’s not their call.”
Legal precedent allows governments to regulate signs to maintain aesthetics, property values and safety, but only in a content-neutral way. Karas found that, while the 2014 version of the law sought to "protect property values, create a more attractive economic and business climate (and) preserve the scenic and natural landscape," Southeast exempted things like real estate signs and holiday decorations.
Southeast did not attempt to argue that either the 2011 or 2013 versions of the law were constitutional. In his finding, Karas wrote they were "for the most part" identical and included content-based restrictions.
Political Sign Ordinance Found to Violate First Amendment
A town ordinance that limits political signs on private property to 21 days before an election and five days after violates the First Amendment, a federal judge found.
Southern District Judge Kenneth Karas, ruling in Marin v. Town of Southeast, 14-cv-2094, blocked the Town of Southeast from enforcing a 2014 ordinance that treated political signs as different from other types of signs.
Karas ruled in favor of Carla Marin, a Carmel lawyer and Putnam County Republican Committee member, who was charged in 2011 under an old version of the law for posting a "temporary political sign on her property more than five consecutive days after a political primary."
The complaint against Marin was dismissed in 2013 by Town Justice Gregory Folchetti "in the interests of justice" under New York Criminal Procedure Law §170.40. Folchetti found the violation was of "minimal seriousness" and "there would be little, if any legitimate purpose for imposing sentence" if Marin was convicted.
But Marin said she continued to fear posting signs through two elections because of the ordinance, even as it was amended in 2013 and 2014.
The 2014 version of the law limits "temporary signs" viewable from a public right of way "for a single activity or event." It made no mention of political speech, but it exempts from the limitation "for sale" signs, holiday displays, road signs advertising farm produce and other categories of signs.
Marin sued in the Southern District in 2014 claiming the law was facially unconstitutional. With the town arguing she lacked standing, Marin said she had suffered and was suffering real injury, in part because she practices "in local courts throughout Putnam County," and "it was humiliating to have to publicly [defend] herself in court."
The town contended the 2014 law was content neutral because "it does not contain any reference to political speech at all," and that it merely applies to all temporary signs for a single activity or event.
Karas acknowledged that "in isolation, the section of the 2014 law that explicitly governs temporary signage, §138-75(C), is content neutral."
"However, §138-75-(A) exempts certain signs from these restrictions, and political signs are not among those exempted," he said, rejecting the town's justifications that the exempted signs do not correspond to a "scheduled activity or event."
"This explanation," he continued, "does not square with the 2014 law, as some signs that clearly refer to a temporary scheduled activity, e.g., 'for sale' signs, are subject to less stringent requirements than political signs … and others, like holiday decorations, are completely exempt. Moreover, such distinctions are clearly based on the content of the speech at issue."
Karas said the law, now presumptively impermissible, is subject to strict scrutiny and, under that standard, it is found wanting because it does not further a compelling government interest.
He said the 2014 ordinance was explicitly designed to address aesthetics, public health, safety, and welfare and property values.
While these qualify as "substantial' interests," he said, "Defendant cites no case law, nor is this court aware of any, finding that such interests are compelling such that the 2014 law can survive strict scrutiny."
Even if those interests had been compelling, the judge said, they had an "insufficient relationship" to the language of the 2014 law.
"There is no reason to believe that temporary signs that reference a particular activity or event have a greater effect on aesthetics or traffic safety than construction, for sale, or holiday signs or other signs that are exempted in the 2014 law, some of which are just as temporary as political signs," he said.
Stephen Bergstein of Bergstein & Ullrich in Chester represents Marin.
"Many communities want to place durational and size restrictions on campaign signs, but they don't realize that, in doing so, they are violating the Constitution, especially where other signs can be posted without any limits," Bergstein said Wednesday.
He noted that the ordinance at issue doesn't allow signs until after the primaries are over.
"Town board members don't like the way signs look; they think they're ugly," he said. "They are making a value judgment, and you can't make a value judgment when it comes to political speech."
James Randazzo and Denise Cossu of Gaines, Novick, Ponzini, Cossu & Venditti in White Plains represented Southeast.
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