Supreme Court Justice Oliver Wendell Holmes once said free speech does not allow “falsely shouting fire in a theater and causing a panic.” Thus, according to the Supreme Court, the Constitution allows states to adopt laws that regulate non-commercial signs.
This is evident in the state law that regulates political signs in the right of-way of state highways. You know, those environmentally obnoxious, vision-polluting road signs. My research shows that there is a high probability that most, if not all, of the political signs placed in the state right of ways at the Pinehurst Traffic Circle and in the Airport Road circle at N.C. 22 have been placed there illegally.
In doing research, I checked with the state Department of Transportation’s right of way office. They and their maps show the outside and entire inside of the Pinehurst and Airport Road circles are state “right of ways.”
State law allows political signs in the right of ways but only if seven conditions are followed. If those conditions are not met, a class 1 misdemeanor has been committed. Six of those conditions are listed. The signs: can’t be on a limited access highway; can’t be closer than 3 feet from a road; can’t obscure visibility; can’t be higher than 42 inches nor bigger than 864 square inches; and can’t obscure another sign.
The seventh condition, apparently ignored universally by the candidates, states that “the permittee must obtain the permission of any property owner … fronting the right of way where a sign would be erected.”
I have checked with some of the landowners whose properties front the Pinehurst or Airport Road right of ways. Unanimously, they have said that no candidate had sought permission, nor been given permission, to place a political sign in either of those circles.
How can it be that the guardians of our safety and our political leaders have unknowingly committed a crime? The answer appears to be straightforward
Instead of candidates taking it upon themselves to know the law, they have relied on the Board of Elections’ published summary of the conditions set forth in state law. That summary does not mention the requirement of permission from the fronting landowner. Permission of the adjoining landowner is set forth on another page published by the board where the statute, in its entirety, is printed. It is readily apparent that the candidates and their campaigns have not read the entire law, and their laziness has resulted in a commission of a crime.
It should be noted that the board also published the state’s littering statute, obviously as a warning to candidates. Since it appears that most, if not all, of the politicians or their agents have committed a crime by failing to comply with the state’s political sign law, it also follows that they have committed a second crime (littering), which is a class 3 misdemeanor and subject to a fine of no less than $250, nor more than $1,000.
There is an absurdity here that cannot be ignored. If the politician is a candidate for sheriff, district attorney or judge, who is going to prosecute and adjudicate the crime that has been committed?
There is one other 800-pound gorilla in the room: Even if the candidates fully complied, their actions would still, in all probability, be illegal littering. Why? Because it appears that the law regulating signs is unconstitutional.
In 2015, the Supreme Court said that laws regulating non-commercial signs are invalid if they differentiate signs on the basis of content. In this case, the state law only allows ‘“political sign”’ and not signs with other content; you are not allowed to put up signs such as “Jesus Saves,” in a state right of way.
UNC School of Government assistant professor Adam Lovelady in a blog post says: “ That statute … will need to be revised to either, prohibit all signs … or allow (all) … compliant signs … in the right of way.”
What can we do? As citizens tired of this ugly litter, maybe we should complain to the Pinehurst police chief or Moore County sheriff and demand prosecution. What would happen then?
Robert “Skip” Gebhardt is an attorney retired from the New York Bar and Florida Bar. He studied constitutional law at Georgetown University Law Center.