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Home My WebLink About07272011 Agenda - Under separate cover - Political SignsCITY OF HOME OF PELICAN ISLAND 1225 MAIN STREET • SEBASTIAN, FLORIDA 32958 TELEPHONE: (772) 589 -5330 • FAX (772) 589 -5570 DATE: July 26, 2011 TO: FROM: Robert A. Ginsburg, City Attorney MEMORANDUM Honorable Mayor and Members of the Sebastian City Council RE: Political Signs These representative cases and others like them form the basis of my opinion that a thirty (30) day time limit on political signs is unconstitutional. WesU.aw 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) P Supreme Court of Washington, En Banc. Michael COLLIER and Joel Beritich, Respondents, v. CITY OF TACOMA, Appellant. No. 59442 -2. July 1, 1993. Candidate for democratic party's nomination for Congressional seat brought action for declaratory judgment that municipal ordinance prohibiting polit- ical signs 60 days before election was unconstitution- al. The Superior Court, Pierce County, Frederick B. Hayes, J., entered judgment for candidate, but denied his request for attorney fees. City appealed and can- didate cross - appealed. Accepting certification from the Court of Appeals, the Supreme Court, Guy, J., held that: (1) regulation in terms of subject matter was content -based restriction; (2) city's regulatory interests in aesthetics and traffic safety were not sufficiently compelling to justify restrictions on candidate's right to political speech; (3) city's interest in aesthetics and traffic safety were sufficient to justify reasonable, content - neutral regulation of noncommunicative as- pects of political signs; and (4) special circumstances of trial publicity and representation by public service firm did not preclude award of attorney fees. Affirmed in part and reversed and remanded in part. Durham, J., filed concurring opinion., in which Andersen, C.J., and Brachtenbach, J., joined. West Headnotes al Constitutional Law 92 e3851 92 Constitutional Law 92XXVII Due Process 92XXV11(A) In General 92k3848 Relationship to Other Constitu- Page 1 tional Provisions; Incorporation 92k3851 k. First Amendment. Most Cited Cases (Formerly 92k274.1(1)) Freedom of speech which is secured by the First Amendment is among the fundamental rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a state. U.S.C.A. Const.Amends. 1, 14. W Constitutional Law 92 X1681 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k1681 k. Political Speech, Beliefs, or Activity in General. Most Cited Cases (Formerly 92k90.1(1)) Constitutional protection afforded political speech has its fullest and most urgent application precisely to conduct of campaigns for political office. West's RCWA Const. Art. 1. § 5; U.S.C.A. Const.Amends. 1, 14. L3] Constitutional Law 92 e1759 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press Events 92XVIII(G) Property and Events 92XVIII(G)2 Government Property and 92k1759 k. Streets and Highways. Most Cited Cases (Formerly 92k90.1(4)) Constitutional Law 92 X1760 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(G) Property and Events 92XVIII(G)2 Government Property and Events © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) 92k1760 k. Sidewalks. Most Cited Cases (Formerly 92k90.1(4)) Constitutional Law 92 €'1761 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press Events 92XVI11(G) Property and Events 92XVIII(G)2 Government Property and 92k1761 k. Parks and Forests. Most Cited Cases (Formerly 92k90.1(4)) Government's ability to restrict expressive activ- ity is very limited in "traditional public forum," which includes those place that by long tradition or by gov- ernment fiat have been devoted to assembly and de- bate, such as parks, streets, and sidewalks. U.S.C.A. Const.Amend. 1. fl Constitutional Law 92 X1735 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XV 1I1(G) Property and Events 92XVIII(G)2 Government Property and Events 92k1732 Public Forum in General 92k1735 k. Justification for Exclusion or Limitation. Most Cited Cases (Formerly 92k90.1(4)) Even in public forum, government may impose reasonable restrictions under Federal Constitution on time, place, and manner of protected speech, provided restrictions are content - neutral, narrowly tailored to serve significant governmental interest, and leave open ample alternative channels of communication. U.S.C.A. Const.Amend. 1. [j Constitutional Law 92 X1509 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(A) In General strictions Page 2 92XVIII(A)1 In General 92k1508 Time, Place, or Manner Re- 92k1509 k. In General. Most Cited Cases (Formerly 92k90(3)) Provision of State Constitution protecting free expression requires that any restriction on time, place, and manner of protected speech be narrowly tailored to serve compelling state interest, not just significant governmental interest, as required under Federal Constitution. West's RCWA Const. Art. 1, § 5; U.S.C.A. Const.Amend. 1. [61 Constitutional Law 92 € '1710 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k1710 k. Signs. Most Cited Cases (Formerly 92k90. 1 (1.2)) City ordinances that expressly define and regulate political signs in terms of subject matter by imposing time restriction for posting political signs, but not commercial signs, fell within realm of content -based restrictions on speech for purposes of determining constitutionality of restriction. West's RCWA Const. Art. 1. § 5; U.S.C.A. Const.Amends. 1, 14. LE Constitutional Law 92 €'1509 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(A) In General 92XVIII(A)1 In General 92k1508 Time, Place, or Manner Re- strictions 92k1509 k. In General. Most Cited Cases (Formerly 92k90(3)) Constitutionally permissible time, place, or manner restrictions may not be based upon either content or subject matter of speech. West's RCWA Const. Art. 1. § 5; U.S.C.A. Const.Amends. 1, 14. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) ail Constitutional Law 921518 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(A) In General 92XVIII(A)1 In General 92k1516 Content -Based Regulations or Restrictions 92k1518 k. Strict or Exacting Scru- tiny; Compelling Interest Test. Most Cited Cases (Formerly 92k90(3)) Content -based restrictions on speech are pre- sumptively unconstitutional and are thus subject to strict scrutiny, requiring government to show that its regulation is necessary to serve compelling state in- terest and that it is narrowly drawn to achieve that end. West's RCWA Const. Art. 1, § 5. EU. Constitutional Law 92 X1514 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVI1I(A) In General 92XVI11(A)1 In General 92k1511 Content- Neutral Regulations or Restrictions 92k1514 k. Narrow Tailoring Re- quirement; Relationship to Governmental Interest. Most Cited Cases (Formerly 92k90(3)) Constitutional Law 92 €—'1515 92 Constitutional Law 92XV1I1 Freedom of Speech, Expression, and Press 92XVIII(A) In General 92XVIII(A)1 In General 92k1511 Content - Neutral Regulations or Restrictions 92k1515 k. Existence of Other Channels of Expression. Most Cited Cases (Formerly 92k90(3)) Time, place, and manner restrictions on speech that are viewpoint neutral, but subject- matter based are valid so long as they are narrowly tailored to serve Page 3 compelling state interest and leave open ample alter- native channels of communication. West's RCWA Const. Art. 1. § 5; U.S.C.A. Const.Amends. 1, 14. J flit Constitutional Law 92 X1509 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVII1(A) In General 92XVIII(A) 1 In General 92k 1508 Time, Place, or Manner Re- strictions 92k1509 k. In General. Most Cited Cases (Formerly 92k90(3)) To prove compelling state interest as element of time, place, and manner restriction of expression, purpose of restriction must be fundamental and leg- islation must bear reasonable relation to achievement of purpose. [111 Constitutional Law 92 €='1510 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(A) In General 92XVIII(A)1 In General 92k 1508 Time, Place, or Manner Re- strictions 92k1510 k. Reasonableness. Most Cited Cases (Formerly 92k90(3)) Reasonableness of time, place, and manner re- striction is determined by balancing public interest advanced by regulation against extent of restriction on free speech right. West's RCWA Const. Art. 1, § 5; U.S.C.A. Const.Amends. 1, 14. fill Constitutional Law 92 €- -'1710 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XV111(F) Politics and Elections 92k1710 k. Signs. Most Cited Cases (Formerly 92k90. 1 (1.2)) © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) City's interest in aesthetics and traffic safety was not sufficiently compelling to outweigh restrictions on political candidate's free speech through municipal ordinances imposing durational limitations on pree- lection posting of political campaign signs, but not on commercial speech; city's disparate treatment of on -site commercial signs over political signs indicated that its interest in aesthetics, though it may have been significant, was not compelling. West's RCWA Const. Art. 1, §5. [131 Constitutional Law 92 €1681 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k1681 k. Political Speech, Beliefs, or Activity in General. Most Cited Cases (Formerly 92k90.1(1)) City seeking to uphold ordinances as reasonable time, place, and manner restrictions on political speech has burden of meeting each element of time, place, and manner test. [141 Constitutional Law 9213'1710 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k1710 k. Signs. Most Cited Cases (Formerly 92k90.1(1.2)) Elections 144 X311.1 144 Elections 144XI Violations of Election Laws 144k311.1 k. Campaign Literature, Publicity, or Advertising. Most Cited Cases City's durational limitation for posting preelection political campaign signs did not leave open reasonably practical alternative channels of communication to political candidate, as required to satisfy time, place, and manner test for restriction on political speech; alternative modes of communication through pur- chasing radio and television time and engaging in Page 4 direct mail were effectively unavailable to candidate as underfunded challenger. West's RCWA Const. Art. 1, § 5; U.S.C.A. Const.Amends. 1, 14. [151 Constitutional Law 92€='1710 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVI11(F) Politics and Elections 92k1710 k. Signs. Most Cited Cases (Formerly 92k90.1(1.2)) Elections 144 X311.1 144 Elections 144XI Violations of Election Laws 144k311.1 k. Campaign Literature, Publicity, or Advertising. Most Cited Cases Only those provisions of municipal ordinances which impermissibly restricted scope of political speech through limitations on time and place for preelection posting of political signs were unconstitu- tional; city's interests in aesthetics and traffic safety were sufficient to justify reasonable, content - neutral regulation of noncommunicative aspects of political signs, such as size, spacing, and consent of private property owner. West's RCWA Const. Art. 1, § 5; U.S.C.A. Const.Amends. 1, 14. [161 Constitutional Law 92 X1681 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k1681 k. Political Speech, Beliefs, or Activity in General. Most Cited Cases (Formerly 92k90.1(1.2)) While preelection political speech interests may outweigh municipality's regulatory interests in given case, those same interests are not present postevent and may be outweighed by municipality's demon- strated interests in aesthetics or traffic safety. [ 171 Civil Rights 78 X1482 78 Civil Rights © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) 78III Federal Remedies in General 78k1477 Attorney Fees 78k1482 k. Results of Litigation; Prevailing Parties. Most Cited Cases (Formerly 78k296) Civil Rights 78 €` -1489 78 Civil Rights 781II Federal Remedies in General 78k1477 Attorney Fees 78k [489 k. Institutional, Salaried, or Public Service Attorneys; Pro Bono Work. Most Cited Cases (Formerly 78k304) Trial publicity for political candidate and his re- presentation by public service firm in action chal- lenging constitutionality of municipal restrictions on posting political signs did not preclude award of at- torney fees as prevailing party in civil rights action. 42 U.S.C.A. §§ 1983, 1988. [181 Civil Rights 78 X1482 78 Civil Rights 78III Federal Remedies in General 78k]477 Attorney Fees 78k1482 k. Results of Litigation; Prevailing Parties. Most Cited Cases (Formerly 78k296) Prevailing plaintiff in civil rights action should ordinarily recover attorney fees unless special cir- cumstances render award unjust. 42 U.S.C.A. §§ 1983, 1988. * *1048 *741 William J. Barker, City Atty., John C. Kouklis, Patricia Bosmans, Heidi Ann Horst, Asst. City Attys., Tacoma, for appellant. Adam Kline, Seattle, for respondents. GUY, Justice. Michael Collier, a candidate for Congress, posted his political campaign signs in residential areas within the City of Tacoma more than 60 days prior to the 1990 primary election. City workers removed Collier's signs from residential yards and parking strips in ac- cordance with two Tacoma ordinances that restrict the preelection posting of political *742 signs in such Page 5 areas to a 60 -day campaign window. Collier sued Tacoma claiming the ordinances violated his free speech rights. The trial court entered judgment in favor of Collier, holding the ordinances unconstitu- tional. We accepted certification from the Court of Appeals and affirm in part and reverse in part. FACTS Michael Collier was a candidate for the demo- cratic party's nomination for Congress in the sixth congressional district of Washington in 1990. Collier had not previously held or run for any elective office. He was not considered a public figure or well known in political circles. Collier's opponent in the primary election was Representative Norm Dicks, a 14 -year incumbent. The primary election was scheduled for Septem- ber 18, 1990. Collier began to plan his campaign in December 1989 and began fund raising in February 1990. Collier identified that the greatest obstacles to his campaign were lack of name familiarity and funding. During the course of the primary campaign, Collier raised and spent a total of $29,000. Repre- sentative Dicks spent $329,000 in his primary cam- paign. Given his resources, Collier determined that yard signs were the most cost - effective means of commu- nicating his political message. At the beginning of May 1990, the Collier campaign assembled some 700 two -sided yard signs. The first of these was posted outdoors between May 20 and 30. Collier supporters placed "Mike Collier for Congress" signs in their front yards and parking strips. Tacoma Municipal Code (TMC) 2.05.275 defines and regulates political signs. The ordinance defines political signs as "[a]ll signs which are displayed out -of -doors on real property relating to the nomi- nation or election of any individual for a public po- litical office or advocating any measure to be voted on at any special or general election ". The ordinance limits the posting of such political signs to a period of not more *743 than 60 days prior to and 7 days after the date of the election for which the signs are in- tended. TMC 2.05.275(1).1 1 FN 1. The full text of TMC 2.05.275 (1) pro- vides: © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) "(1) Such political signs shall not be dis- played more than sixty days prior to and seven days after the date of the election for which intended. In cases where a general election follows within 55 days of a pri- mary election, those signs for candidates whose names will appear on the ballot in the general election may be displayed during the interim period and up to seven days after the general election. In all in- stances herein in which political signs are required to be removed within seven days after the election for which the political sign was displayed, if said signs are not removed, they will be subject to removal by the City of Tacoma Public Works De- partment. Provided, however, that this provision shall not prohibit political signs in areas where other provisions of the Official Code of the City of Tacoma allows the same as legally licensed outdoor ad- vertising displays." * *1049 Tacoma Municipal Code 6.03.070 pro- hibits any person, firm, or corporation from posting any signs. on any public street or highway or upon any curb- stone, lamp post, street sign, pole, hydrant, bridge, tree, or other thing situated upon any public street or highway or any publicly owned property within the City of Tacoma, except as may be authorized by ordinances of the City of Tacoma ... PROVIDED, HOWEVER, the prohibition contained herein shall not apply to political signs placed on parking strips preceding a primary or general election where such political signs are installed pursuant to the permis- sion of the owner of the property abutting said parking strip and installed in such a manner as not to constitute a traffic hazard ... Real estate signs advertising the sale or rent of the property upon which they stand or to which they are attached, and other signs attached to any building or sidewalk advertising the business carried on in the building, are exempt from the provisions of this chapter. TMC 6.03.080. Pursuant to these ordinances, Tacoma Public Works Department employees removed signs dis- playing "Mike Collier for Congress" from residential Page 6 yards and parking strips within the City of Tacoma that were posted more than 60 days prior to the pri- mary election. Mr. Benjamin Thompson, City Engi- neer for Tacoma, testified that he directed personnel from his department to pick up all signs in the public *744 right -of -way FF "2 throughout the city. Mr. Thompson testified that his department also removes commercial signs from residential areas since com- mercial signs are not permitted in those areas. Mr. Thompson understood that the ordinance allows an exception for on -site commercial signs pertaining to the sale or rent of private property. He testified that in order to enforce the ordinances, he differentiates be- tween commercial and political signs by reading them. FN2. Mr. Thompson defined public "right -of -way" as "that area within a devel- opment that is set aside for and dedicated for use of a public street, sidewalks, and public utilities." Report of Proceedings, at 11. Mr. Thompson testified that the public right -of -way extends 15 feet from the curb: 5 feet for the parking strip, 5 feet for the si- dewalk, and an additional 5 feet into the homeowner's front yard. Collier filed this action in July 1990 seeking a temporary restraining order, an injunction against the ordinances' enforcement, a declaratory judgment that the ordinances are unconstitutional, and attorney fees. The complaint was subsequently amended to include plaintiff "' Joel Beritich, a Collier supporter who had political signs removed from his yard and parking strip. The amended complaint also cited 42 U.S.C. § 1983 as an additional source of protection for the rights involved and 42 U.S.C. § 1988 as the statutory basis for the claim of attorney fees. On February 15, 1991, the trial court entered judgment in favor of Collier, holding that the ordinances were unconstitu- tional, but denied Collier's claim for attorney fees. Tacoma appealed the trial court's judgment as to the ordinances, and Collier cross appealed the trial court's denial of attorney fees. We accepted certification from the Court of Appeals and now affirm in part and re- verse in part. FN3. Hereafter, both plaintiffs are identified collectively as "Collier ". ISSUES This case presents three issues for review. First, © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) do the Tacoma ordinances unconstitutionally restrict Collier's free speech rights? We hold that Tacoma's durational limitation *745 on the preelection posting of political signs unconstitutionally restricts Collier's right to political expression. Second, did the trial court err in declaring the Tacoma ordinances unconstitutional in their entirety? We answer in the affirmative and hold unconstitu- tional only * *1050 those portions of the Tacoma or- dinances that impermissibly restrict political speech. Third, did the trial court err when it denied plain- tiffs' request for attorney fees pursuant to 42 U.S.C.. `Z 1988? We reverse the trial court on the issue of at- torney fees and remand for a determination of an award of fees consistent with this opinion. ANALYSIS 111 The Tacoma ordinances are challenged under both the first and fourteenth amendments to the United States Constitution, and article I. section 5 of the Washington Constitution. The First Amendment pro- vides that "Congress shall make no law ... abridging the freedom of speech ". U.S. Const. amend. 1. The freedom of speech which is secured by the First Amendment is "among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a State." Burson v. Freeman, 504 U.S. 191, - - - -, 112 S.Ct. 1846, 1850. 119 L.Ed.2d 5. 12 (1992) (quoting Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093 (1940)). Article 1, section 5 of the Washington Constitution provides that "[e]very per- son may freely speak, write and publish on all sub- jects, being responsible for the abuse of that right." As we stated in O'Day v. King Cy., 109 Wash.2d 796. 801 -02, 749 P.2d 142 (1988) (citing State v. C'oe. 101 Wash.2d 364, 373 -74. 679 P.2d 353 (1984)), "[t]his court has a duty, where feasible, to resolve constitutional questions first under the provisions of our own state constitution before turning to federal law." We do so because in addition to our responsi- bility to interpret Washington's constitution, we must furnish a rational basis "for counsel to predict the future course of state decisional law." *746Stute v. Gunwall. 106 Wash.2d 54, 60. 720 P.2d 808, 76 A.L.R.4th 517 (1986). See Utter, The Practice of Principled Decision - Making in State Constitutional- Page 7 ism: Washington's Experience. 65 Temp.L.Rev. 1 153 (1992). We recognize that the free speech clauses of the state and federal constitutions are different in wording and effect, but that the result reached by previous Washington cases in general adopted much of the federal methodology for application to state constitutional cases. The federal cases cited here and in our prior decisions are used for the purpose of guidance and do not themselves compel the result the court reaches under our state constitution. See Mich- igan v. Long, 463 U.S. 1032. 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983 ); Seattle v. Mesiani, 110 Wash.2d 454, 456, 755 P.2d 775 (1988). With these statements in mind, we turn to our analysis of the Tacoma or- dinances. II 121 The Tacoma ordinances implicate several concerns in our free speech jurisprudence: regulation of political speech, regulation of political speech in a public forum, and regulation based on the content of the speech. The speech restricted by Tacoma Munic- ipal Code sections 2.05.275 and 6.03.070 is political speech. The code defines "political signs" and restricts the time and place in which such signs may be posted. Wherever the extreme perimeters of protected speech may lie, it is clear the First Amendment protects po- litical speech, see Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293.65 L.Ed.2d 263 (1980), giving it greater protection over other forms of speech. Me- tromedia, Inc. v. San Diego, 453 U.S. 490, 513. 101 S.Ct. 2882, 2895, 69 L.Ed.2d 800 (1981). The con- stitutional protection afforded political speech has its "fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy. 401 U.S. 265 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971). [31 The second important feature of the Tacoma ordinances is that they restrict political speech in a traditional public forum. The traditional public forum includes those places " `which by long tradition or by government fiat have *747 been devoted to assembly and debate,' " such as parks,streets and sidewalks. * *1051Burson v. Freeman, supra 504 U.S. at - - - -, 112 S.Ct. at 1850 (quoting Perry Educ.. Assn v. Perry Local Educators' Assn, 460 U.S. 37, 45. 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983)); Hague v. Com- mittee for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939). See also Buchanan, Case of the Vanishing Public I "orunr. 1991 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) U.I11.L.Rev. 949, 951. The parking strips F "=4 in which Collier and his supporters placed his political signs lie between the "streets and sidewalks" and thus are part of the "traditional public forum ". Because these places occupy a special position in terms of First Amendment protection, the government's ability to restrict expres- sive activity is very limited. Boos v. Barry; 485 U.S. 312. 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988). FN4. Collier also raises an issue concerning the restriction of political speech on private property. This issue was not adequately ad- dressed in the briefing, is not necessary to our decision in this case, and thus will not be discussed further. J41151 Since the Tacoma ordinances do not ban political signs altogether, we analyze the ordinances as time, place, and manner restrictions. See, e.g., Renton v. Plavtime Theatres, Inc., 475 U.S. 41, 46. 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986). The United States Supreme Court has held that even in a public forum, the government may impose reasonable restrictions on the time, place, and manner of protected speech, pro- vided the restrictions are content - neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of com- munication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Perry Educ. ilss'n, 460 U.S. at 45, 103 S.Ct. at 954. We diverge from the Supreme Court on the state interest element of the time, place, and manner test, "as we believe restrictions on speech can be imposed consistent with Const. art. 1, § 5 only upon showing a compelling state interest." F`5 *748 Bering v. Share, 106 Wash.2d 212, 234, 721 P.2d 918 ( 1986), cert. dismissed, 479 U.S. 1050, 107 S.Ct. 940. 93 L.Ed.2d 990 (1987). The broad language of Const. art. 1, § 5 as compared with the federal constitution compels this result. FN5. Our prior holdings have required counsel to discuss at least the factors enun- ciated in State v. Gunwall, 106 Wash.2d 54, 720 P,2d 808. 76 A.L.R.4th 517 (1986), when they assert the applicability of our state constitution. Counsel's failure in this case to discuss these factors would normally prec- lude our consideration of the state constitu- tional issues. State v. Wethered, 1 10 Wash.2d Page 8 466, 472, 755 P.2d 797 (1988). Citation of Bering is not enough. Because Bering is a post - Gunwall case without Gunwall analysis, it might be construed not to call for such an analysis. For this reason, in this case only, we will not require a separate analysis of the nonexclusive factors in Gunwall to reach the state constitutional issue. For future cases, we stress that this court must have the benefit of a state constitutional argument that is of assistance to the court to determine the meaning of the language used as it relates to the state constitutional claim and whether there are factors other than language that should determine the scope of our constitu- tional provisions. See Utter, The Practice cf Principled Decision - Making in State Con- stitutionalism: Washington's Experience, 65 Temp.L.Rev. 1153. 1160-63 (1992). Tacoma and amici curiae City of Bellevue and Washington State Association of Municipal Attorneys argue that the Tacoma ordinances are constitutionally permissible restrictions on the time, place, and manner of political speech. We disagree. Applying the 3 -part test for time, place, and manner regulations outlined above, we conclude that Tacoma's durational limita- tion on the preelection posting of political signs is unconstitutional. Our analysis of the Tacoma ordin- ances under each element of the time, place, and manner test follows. Content Neutrality 161[71[81 The trial court held that Tacoma Mu- nicipal Code sections 2.05.275 and 6.03.070 are "not content - neutral, in that they expressly define and re- gulate `political' signs." Tacoma and amici argue that the ordinances are content - neutral because the city does not regulate the message conveyed -only the method by which it is conveyed. Collier claims the ordinances are content -based because they define and regulate political speech as a class of expression. Constitutionally permissible time, place, or manner restrictions may not be based upon either the content or subject * *1052 matter of speech. See Consolidated Edison Co. of N.Y. v. Public Serv. C.'onun'n of N.Y.. 447 U.S. 530, 536. 100 S.Ct. 2326. 2332, 65 1.-.Ed.2d 3 1 9 (1980). Content -based restrictions on speech are presumptively *749 unconstitutional and are thus subject to strict scrutiny. Renton, 475 U.S. at 46 -47, 106 S.Ct. at 928 -29., Burson v. Freeman, 504 U.S. at © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. • 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) - - - -, 112 S.Ct. at 18, 119 L.Ed.2d at 13 -14. Under that intense level of review, government must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. at 954. The Tacoma ordinances do not fit neatly into ei- ther the content -based or the content - neutral category. Our review of the case law and commentary on this subject indicates that the distinction is not always transparent. See, e.g., Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L.Rev. 189 (1983). In determining whether a restriction is con- tent- neutral or content - based, the Supreme Court has held that "[g]overnment regulation of expressive ac- tivity is content neutral so long as it is justified without reference to the content of the regulated speech.' " Ward v. Rock Against Racism. 491 U.S. at 791, 109 S.Ct. at 2753. While the Tacoma ordinances do not regulate political signs in terms of viewpoint, they describe and regulate permissible sign posting in terms of subject matter. Subject- matter restrictions are not directed at "particular ideas, viewpoints, or items of information, but at entire subjects of expression." Stone, 25 Wm. & Mary L.Rev. at 239. In this case, political signs are subject to a 60 -day restriction "out -of -doors on real property ", whereas on -site commercial signs identifying a property for sale or for rent are not. TMC 2.05.275; TMC 6.03.070, .080. How long a sign may be maintained depends upon the kind of message the sign seeks to convey. The trial court found that Tacoma Public Works Department personnel have to read the signs in order to determine whether they are prohibited at a particular time. The United States Supreme Court has held that an ordinance is content -based if it distinguishes between permissible and impermissible signs at a particular location by reference to content. Metromedia, Inc. v. San Diego, 453 U.S. 490, 516 -17. 101 S.Ct. 2882, 2897, 69 L.Ed.2d 800, 101 S.Ct. 2882 (1981); FCC v. League of Women Voters of Calif. 468 U.S. 364. 383 -84. 104 S.Ct. 3106, 3119 -20. 82 L.Ec1.2d 278 (1984). As one commentator noted, the United States *750 Supreme Court's prohibition of content -based regulations is based "both on equal protection grounds and on a first amendment grant of equal access to an open forum." (Footnotes omitted.) Note, Members of the City Council v. 7axpayersjor Vincent: The Con- stitutionality of Prohibiting Temporary Sign Posting Page 9 on Public Property to Advance Local Aesthetic Con- cerns, 34 De Paul L.Rev. 197. 208 -09 (1984). The question is "not whether all those within the classes defined by the state are treated equally but, rather, whether the classification itself is permissible." Stone, Fora Americana: Speech in Public Places, 1974 Sup.Ct.Rev. 233, 276. As the Supreme Court stated in Burson v. Freeman. 504 U.S. at - - -- n. 3, 112 S.Ct. at 1850 n. 3. 119 L.Ed.2d at 13 n. 3, content -based re- strictions raise Fourteenth Amendment equal protec- tion concerns because such restrictions differentiate between types of speech. See Metromedia, 453 U.S. at 517 -21, 101 S.Ct. at 2897 -99 (billboard ordinance favoring commercial speech over noncommercial speech violated First Amendment neutrality); Police Dept of Chicago v. Mosley. 408 U.S. 92. 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (ordinance that prohi- bited picketing near a school building, but that ex- pressly exempted peaceful labor picketing, held un- constitutional); Matthews v. Town of Needham, 764 F.2d 58, 60 (1st Cir.1985) (town bylaw that barred the posting of political signs on residential property but permitted the posting of certain commercial signs held facially unconstitutional because bylaw was con- cerned with content, as opposed to the time, place, or manner of the speech); People v. Middletnark, 100 Misc.2d 760, 420 N.Y.S.2d 151 (Dist.Ct.1979) (or- dinance which proscribed political signs but allowed other signs in residential * *1053 areas subjected to strict scrutiny); Antioch v. Candidates' Outdoor Graphic Serv., 557 F.Supp. 52 (N.D.Ca1.1982) (mu- nicipal ordinance which imposed a 60 -day limitation on political signs but not on commercial signs dis- criminated in the exercise of First Amendment rights in violation of the equal protection clause). The Ta- coma ordinances, by regulating sign posting in terms of subject matter, albeit viewpoint neutral, fall within the realm of content -based restrictions. *751 Tacoma and amici argue that in determin- ing content - neutrality, the question is not whether the signs must be read, but whether the City of Tacoma prohibited the signs out of disapproval of the message promoted.Fyc' Citing Ward, Tacoma claims the prin- cipal inquiry in determining content neutrality in time, place, or manner cases is whether the government has adopted a regulation of speech "because of disagree- ment with the message it conveys." Ward, 491 U.S. at 791, 109 S.Ct. at 2753 (citing Clark y. Community for Creative Non - Violence, 468 U.S. 288. 295. 104 S.Ct. 3065, 3070, 82 L.Ed.2d 221 (1984)). Tacoma con- tends that since the ordinances serve a purpose unre- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) fated to a sign's content, the ordinances are con- tent- neutral. See Ward, 491 U.S. at 791, 109 S.Ct. at 2753. FN6. The stated purpose of Tacoma's sign code is "to provide minimum standards to safeguard life, health, property and public welfare by regulating and controlling the design, quality of materials, construction, location, electrification, and maintenance of all signs and sign structures." TMC 2.05.020. Collier argues that this standard is too subjective, and that a showing of "improper legislative intent" would be practically impossible to make. We agree. The Supreme Court has recognized that "even regu- lations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment." Minneapolis Star dt Tribune Co. v. Minnesota Comnt'r of Rev.. 460 U.S. 575, 592, 103 S.Ct. 1365, 1375, 75 L.Ed.2d 295 (1983). In some cases, the fact that a regulation is content -based and invalid will be apparent from its face. See Simon &.. Schuster, Inc. v. New York Crime Victims 13d., 502 U.S. 105, - - - -, f 12 S.Ct. 501, 512, 116 L..Ed.2d 476, 492 (1991) (Kennedy, J., concurring). In other cases, a censorial justification "will not be apparent from the face of a regulation which draws distinctions based on content, and the government will tender a plausible justification unrelated to the suppression of speech or ideas." Burson v. Freeman, 504 U.S. 191, - - - -. 112 S.Ct. 1846. 1858, 119 L.Ed.2d 5, 23 (1992) (Kennedy, J., concurring). Although the Tacoma ordinances are viewpoint neutral, they define and regulate a specific subject matter - political speech. *752 This con- tent -based distinction, while viewpoint neutral, is particularly problematic because it inevitably favors certain groups of candidates over others. The incum- bent, for example, has already acquired name fami- liarity and therefore benefits greatly from Tacoma's restriction on political signs. The underfunded chal- lenger, on the other hand, who relies on the inexpen- sive yard sign to get his message before the public is at a disadvantage. We conclude therefore that while aesthetic interests are legitimate goals, they require careful scrutiny when weighed against free speech interests because their subjective nature creates a high risk of impermissible speech restrictions. "[Dlemocracy stands on a stronger footing when courts protect First Amendment interests against leg- islative intrusion, rather than deferring to merely ra- Page 10 tional legislative judgments in this area ". Metromedia, 453 U.S. at 519, 101 S.Ct. at 2898. Finally, Tacoma cites Renton v. Playtime Thea- tres, Inc.. 475 U.S. 41, 47. 106 S.Ct. 925, 928. 89 L.Ed.2d 29 (1986), for the proposition that an appar- ently content -based statute may be content - neutral if the restriction on speech is targeted at the speech's secondary effects. In Renton, the Supreme Court con- sidered the constitutionality of a zoning ordinance that restricted the location of adult theatres to one area of town. The ordinance was held constitutional because it did not target the content of the films shown at the theatres. Rather, the ordinance was aimed at the sec- ondary effects that adult theatres have on the * *1054 surrounding community. Renton, at 46, 106 S.Ct. at 928. We do not find Renton diapositive since it did not analyze a content -based restriction on political speech. While a distinction between adult theatres and other kinds of theatres may be permissible based on a "secondary effects" analysis, drawing a similar dis- tinction between commercial speech and political speech turns the favored status of political speech on its head. We therefore decline to draw such a distinc- tion where a restriction on political speech in a public forum is at issue. 191 In summary, the Tacoma ordinances are viewpoint - neutral, but are content -based in that they classify permissible *753 speech in terms of subject matter. Ordinarily this conclusion would take the ordinances out of the domain of time, place, and manner restrictions, Metromedia, 453 U.S. at 516 -17, 101 S.Ct. at 28 and would instead require a strict scrutiny analysis. Burson v. Freeman. 504 U.S. at - - -- - - - - -, 112 S.Ct. at 1850 -51, 119 L.Ed.2d at 13 -14. See Perry Educ. Assn, 460 U.S. at 45. 103 S.Ct. at 954. We conclude, however, that the Tacoma ordinances can be reviewed under a time, place, and manner formulation. We hold that time, place, and manner restrictions on speech that are viewpoint- neutral, but subject- matter based, are valid so long as they are narrowly tailored to serve a compelling state interest and leave open ample alternative channels of com- munication. This formulation of the standard of re- view comports with free speech jurisprudence under both article 1, section 5 of the Washington Constitu- tion, Bering v. Share, 106 Wash.2d 212, 234, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050. 107 S.Ct. 940, 93 L.Ed.2d 990 (1987), and the first amendment to the United States Constitution. See Burson v. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) Freeman, 504 U.S. at - - - -, 112 S.Ct. at 1858, 119 L.Ed.2d at 23 (Kennedy, J., concurring) (recognizing that in time, place, and manner cases, since the regu- lation's justification is a "central inquiry ", the com- pelling interest test may be one analytical device to detect, in an objective way, whether the asserted jus- tification is in fact an accurate description of the purpose and effect of the law).F "7 In this manner, we are able to balance the competing interests while re- cognizing that the burden of justifying a restriction on speech remains on the State. See Burson. 504 U.S. at - - - -. 112 S.Ct. at 1861, 119 L.Ed.2d at 32 (Stevens, J., dissenting). FN7. For cases requiring careful judicial scrutiny of regulations to ensure that no co- vert content -based restrictions exist, see Consolidated Edison Co. of N.Y. v. Public Serv. Cotnm.'n of N.Y., 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); Erznoz- nik v. Jacksonville. 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). See Note, Members of the City Council v. Taxpayers for Vincent :: The Constitutionality of Prohibiting Temporary Sign Posting on Public Property to Advance Local Aesthetic Concerns, 34 De Paul L.Rev. 197, 206 (1984). Compelling State Interest [1011111 Inasmuch as we have dealt with the first element of the time, place, and manner analysis, con- tent neutrality, we next discuss the state interest ele- ment. Applying the standard enunciated above, Ta- coma must prove that its *754 ordinances, taken to- gether, are narrowly drawn to serve a compelling state interest. To constitute a compelling interest, the pur- pose must be a fundamental one and the legislation must bear a reasonable relation to the achievement of the purpose. Adult Entertainment Center, Inc. v. Pierce Cy., 57 Wash.App. 435. 439, 788 P.2d 1102. review denied, 115 Wash.2d 1006, 796 P.2d 725 (1990). See Bates v. Little Rock, 361 U.S. 516, 524 -25, 80 S.Ct. 412, 417 -18, 4 L.Ed.2d 480 (1960). We de- termine the reasonableness of a time, place, and manner restriction by balancing the public interest advanced by the regulation against the extent of the restriction on free speech rights. State v. Lotze, 92 Wash.2d 52, 58. 593 P.2d 811, appeal dismissed, 444 U.S. 921, 100 S.Ct. 257.62 L.Ed.2d 177 (1979); Me- tromedia. Inc.. v. San Diego. 453 U.S. 490. 502, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981). Page 11 1 121 Tacoma argues that its interest in city aes- thetics and traffic safety is a compelling state interest, and that the ordinances were "narrowly tailored" to serve that interest. We disagree. Although * *1055 aesthetics has been determined to be a significant governmental interest, Members of the City Conn. of Los Angeles v. Taxpayers for Vincent. 466 U.S. 789, 805. 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772 (1984), it has not been determined to be an interest sufficiently compelling to justify restrictions on political speech in a public forum. The record in this case does not justify such a result. While Tacoma and amici cite Vincent and State v. Lotze, supra, for support, neither decision supports their premise that aesthetics and traffic safety are state interests sufficiently compelling to outweigh the restrictions imposed on Collier's free speech. In Vincent, the Court upheld a municipal ordin- ance prohibiting the posting of any signs on public property. Roland Vincent was a candidate for election to the Los Angeles City Council. His political signs were attached to utility poles throughout the city. Pursuant to the ordinance, his signs were removed from the poles. The Court concluded that the ordin- ance was a valid time, place, and manner restriction. Vincent. at 815. 104 S.Ct. at 2133. Vincent is distin- guishable from this case in two important respects. First, Vincent involved a law that prohibited the posting of all signs, regardless of content. Second, *755 the utility poles upon which Vincent's signs were posted were not considered part of the traditional public forum. Vincent, at 814, 104 S.Ct. at 2133. See also Note, Members of the CityCotutcil v. Taxpayers for Vincent: The Constitutionality of Prohibiting Temporary Sign Posting on Public Property to Ad- vance Local Aesthetic Concerns 34 De Paul L.Rev. 197. 227 (1984) (analyzes Vincent as misapplying First Amendment precedent and the primacy of po- litical speech). In State v. Lotze, we held that aesthetics and, to a greater extent, traffic safety were interests sufficiently compelling to outweigh the incidental restrictions on the appellants' exercise of First Amendment speech. Lotze, 92 Wash.2d at 58 -60, 593 P.2d 811. In Lotze, the State sought to remove political billboards adja- cent to a highway under the authority of Washington's highway sign law (RCW 47.42), which generally prohibits all signs visible from interstate, primary or scenic systems except as permitted under the act. The © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) listed exceptions under the act include signs adver- tising the sale or lease of property upon which they are located. We stated that unlike on- premise business signs and realty for sale signs, political messages such as the signs involved in Lotze are addressed "to the general universality of political ideas" and need not be linked with a specific site in order to derive meaning. Lotze, at 59, 593 P.2d 811. We held that the statute met the test for a state restraint on First Amendment rights because appellants' speech was not controlled as to content and because alternative means of communi- cating such views were available. Lotze, at 60. 593 P.2d 811. The Supreme Court in Metromedia, 453 U.S. at 513 -14 n. 18, 101 S.Ct. at 2895 -96 n. 18, overruled its prior summary approval of State v. Lotze. 92 Wash.2d 52, 593 P.2d 811, appeal dismissed, 444 U.S. 921, 100 S.Ct. 257. 62 L.Ecl.2d 177 (1979). Finding that San Diego's aesthetic interests were sufficiently significant to justify its ban on off -site commercial advertising, but were insufficient to warrant a ban on noncom- mercial signs, the Court observed that some decisions, including State v. Lotze, have failed to give adequate weight to the distinction between commercial and noncommercial speech. Metromedia, 453 U.S. at 513 -14 n. 18, 101 S.Ct. at 2895 -96 n. 18. Other courts have also criticized the analysis in Lotze. In *756 Van v. Travel Information Conn., 52 Or.App. 399, 628 P.2d 1217 (1981), the Oregon Court of Appeals held that a 60 -day restriction on temporary political signs adjacent to highways was unconstitutional. The Van court relied on a majority of decisions which were contrary to Lotze in order to conclude that aesthetic interests were insufficient to justify the significant restriction on political speech imposed by the 60 -day limitation on political campaign signs. Van, at 416, 628 P.2d 1217. We agree with Collier that Lotze should not be controlling on this issue. We depart from our holding in Lotze to the extent it * *1056 implies that aesthetics and traffic safety are compelling interests justifying greater restrictions on political speech than on com- mercial speech. We recognize that Tacoma's ordin- ances, unlike the statute at issue in Lotze, do not completely prohibit political sign posting. Given the preferred status of political speech, however, Tacoma has failed to show that its interest in maintaining a clean, litter -free community 1-"a is sufficiently com- pelling to justify its disparate treatment of political Page 12 speech. In Metromedia, San Diego's allowance of some billboards, but not others, was evidence that its interests in traffic safety and aesthetics, while "sub- stantial ", fell short of "compelling ". Metromedia, 453 U.S. at 520, 101 S.Ct. at 2899. Likewise, Tacoma's disparate treatment of on -site commercial signs over political signs indicates that its interest in aesthetics is significant, but not compelling. FN8. Indeed, Collier argues that the self - interest and good sense of candidates already serves to regulate political yard signs. Furthermore, Tacoma has not shown that yard signs create a substantial traffic hazard. There was no evidence that any of Collier's signs were hazardous to traffic or blocked pedestrian access. Mr. Thompson knew of no yard signs that had been found blocking sidewalks, utility lines or poles, or streets. Tacoma's claim that it restricts political yard signs to a 60 -day period on behalf of a "compelling state interest" in traffic safety lacks evidentiary support. Once political signs are allowed on a temporary basis, "it is difficult to imagine how prohibiting political signs at other times significantly promotes highway safety." Van. 52 Or.App. at 412.628 P.2d 1217. *757 A regulation that serves a compelling state interest must be narrowly tailored to serve that inter- est. Ward v. Rock Against Racism, 49 1 U.S. 781. 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Bering v. Share, 106 Wash.2d 212. 233 -34, 721 P.2d 918 ( 1986), cert. dismissed, 479 U.S. 1050. 107 S.Ct. 940, 93 L.Ecl 2c1 990 (1987). The trial court found that neither ordinance is narrowly tailored to serve a compelling state interest. Tacoma argues that its re- strictions are narrowly drawn since they allow politi- cal signs to be posted for the duration of a political campaign. We disagree. The Tacoma ordinances restrict political expres- sion by imposing durational limitations on the pree- lection posting of political campaign signs. Tacoma cites two cases for authority that preelection sign limitations have been upheld. Neither decision pro- vides a satisfactory rationale for upholding such re- strictions. In Town of Huntington v. Estate of Schwartz, 63 Misc.2d 836, 839, 313 N.Y.S.2d 918 (Dist.Ct. I970), the court held that a 6 -week limitation on political signs was within the scope of the muni- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) cipality's police powers. The court found that the municipality could use or consider aesthetic consid- erations in applying such power. Cf. People v. Mid - dlemark, 100 Misc.2d 760. 763. 420 N.Y.S.2d 151 (Dist.Ct.1979) (distinguished Town of Huntington, holding that a similar political sign ordinance was unconstitutional because it made an impermissible distinction between political signs and other signs). In Ross v. Goshi, 351 F.Supp. 949. 955 (D.Haw.1972), the court upheld a 60 -day restriction, stating only that the ordinance was a "proper balancing of the con- flicting interests ". We find these decisions unpersua- sive since they lack a discussion of the First Amend- ment and equal protection considerations at issue. Other courts have held that preelection durational limitations on political campaign signs are unconsti- tutional. In Antioch v. Candidates' Outdoor Graphic Serv., 557 F.Supp. 52 (N.D.Ca1.1982), the court held that the Antioch municipal ordinance, which banned the posting of temporary political signs everywhere in the city for all but a 60 -day period before an election, unconstitutionally discriminated in the *758 exercise of First Amendment rights in violation of the equal protection clause. The Antioch court viewed the or- dinance as a general "ban" on political speech, with a temporary, 60 -day suspension, prior to an election. Antioch, at 56. See also * *1057Van v. Travel Infor- mation Coun...supra 52 Or.App. at 416, 628 P.2d 1217 (60 -day limitation unnecessarily restrictive in light of the First Amendment interests involved and the state's interests sought to be advanced); Orazio v. Town of North Hempstead. 426 F.Supp. 1 144 (E.D.N.Y.1977) (ordinance which limited the posting of political wall signs to 6 weeks prior to an election was invalidated on equal protection grounds). See generally, Blumoff, After Metromedia: Sign Controls and the First Amendment,28 St. Louis U.L.J. 171, 194 -96 (1984). Tacoma's 60 -day restriction, unlike the typical time, place, and manner restriction, does not attempt to determine whether and at what times the exercise of free speech rights is compatible or incompatible with the normal uses of a traditional forum or place. The Tacoma ordinances, like the ordinances in Antioch, Van, and Orazio, unnecessarily restrict the preelection posting of signs promoting the candidacy of certain individuals or advocating a certain viewpoint on an upcoming ballot proposition. Tacoma has not shown that its restrictive time period of 60 days, even if evenhandedly applied to all temporary signs, reason- Page 13 ably and adequately provides for the exercise of po- litical speech. Before the city may impose durational limits or other restrictions on political speech to ad- vance aesthetic interests, it must show that it is se- riously and comprehensively addressing aesthetic concerns with respect to its environment. Antioch, 557 F.Supp. at 60. Accord Tauber v. Town of Longmea- dow, 695 F.Supp. 1358, 1362 (D.Mass.1988). See also Metromedia, Inc. v. San Diego, 453 U.S. 490, 528 -31, 101 S.Ct. 2882, 2903 -05, 69 L.Ed.2d 800 t 19811 (Brennan, J., concurring in judgment) (failure to pro- vide adequate justification for a restriction on pro- tected activity merits invalidation of the restriction). Tacoma has made no showing on the record that it is seriously and comprehensively addressing aesthetic or traffic safety concerns other than through the ordin- ances in question. *759 While Tacoma is correct that the ordinances are not invalid simply because there may be some " `imaginable alternative that might be less burdensome on speech' ", Ward, 491 U.S. at 797, 109 S.Ct. at 2757 (quoting United States v. Albertini, 472 U.S. 675. 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2(1 536 (1985)), the ordinances fail to provide adequately for Collier's free speech rights. Given the preferred status accorded political speech, and the persuasive authority in other jurisdictions which have dealt with this issue, we conclude the Tacoma ordinances are not narrowly drawn to serve a compelling state interest. In balanc- ing the competing interests, we hold that Tacoma's regulatory interests in aesthetics and traffic safety, as demonstrated on the record, do not outweigh Collier's right to political speech. We depart from our decision in Lotze to the extent it conflicts with our decision in this case. Alternative Channels of Communication The third and final element of both the federal and state constitutional tests requires that a time, place, and manner restriction leave open ample alternative channels for communication. Ward. 491 U.S. at 791, 109 S.Ct. at 2753: Bering„ 106 Wash.2d at 234, 721 P.2d 918. The trial court found that Collier had not "sustained [his] burden of proof that the ordinances do not leave open ... an alternative means of communi- cation". Collier assigns error to the trial court's placement of the burden of proof on him. We agree with Collier. 1 131 Government may impose reasonable restric- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d. 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) tions on the time, place, or manner of speech, provided the restrictions meet the standards enunciated above. Because Tacoma seeks to uphold the ordinances as reasonable time, place, and manner restrictions on political speech, it has the burden of meeting each element of the time, place, and manner test. We con- clude the trial court erred in assigning Collier the burden of proving the "availability of alternative channels of communication ", the third element of the time, place, and manner test. See Bering, 106 Wash.2d at 234, 721 P.2d 918; Ward, 491 U.S. at 791, 109 S.Ct. at 27.53. That burden properly rests * *1058 with Ta- coma, and Tacoma has failed to meet it. *760 f 141 Both Tacoma and amici argue that politicians have numerous ways of expressing them- selves through other media than the posting of signs. Collier does not dispute that he had the right to pur- chase radio and television time and to engage in direct mail. His argument is that these alternative modes of communication were effectively unavailable to him as an underfunded challenger. Based on our review of the record, we agree with Collier. In Collier's case, the yard sign was the most cost - effective, realistic method of increasing his name familiarity. Because means of political speech are not entirely fungible, the political yard sign offers special advantages to the candidate seeking public office. Political yard signs are rela- tively cost - effective and can be localized to a high degree. Antioch. 557 F.Supp. at 59 (citing Baldwin v. Redwood City, 540 F.2d 1360, 1368 (9th Cir.1976), cert. denied, 431 U.S. 913 97 S.Ct. 217353 L..Ed.2d 223 (1977)). In Collier's case, the issue is not whether "ample alternatives" are available, but whether they are practically available. Alternatives are not "alter- natives" if they are far from satisfactory. Metromedia, 453 U.S. at 516, 101 S.Ct. at 2997. Thus, the "sum- mary seizure of a political sign for even a few days can deprive the sign's owner of an important First Amendment liberty interest." Baldwin, 540 F.2d at 1374. Given the record before us, we conclude that Tacoma's restrictions on political sign posting did not afford Collier adequate alternative channels of com- munication. In summary, we concur with the trial court that the Tacoma ordinances are invalid time, place, and manner restrictions. Tacoma has failed to prove that its interests in aesthetics and traffic safety are suffi- ciently compelling to justify the restrictions imposed on Collier's rights to political expression. Tacoma has Page 14 also failed to prove that its restrictions left Collier ample alternative channels in which to communicate his message. We conclude, therefore, that Tacoma's durational limitation on the preelection posting of political campaign signs violates the free speech pro- visions of both the Washington and the United States Constitutions. *761 III 1 151 Tacoma claims the trial court erred in dec- laring both ordinances unconstitutional in their enti- rety. We agree. The record indicates that the parties' dispute focused on section (1) of TMC 2.05.275, ra- ther than on the ordinance as a whole. No issue was raised as to section (2) (size limitations), or section (3) (requiring consent of private property owners). Simi- larly, only those portions of TMC 6.03.070 and 6.03.080 that affect political expression are at issue. As a general rule "only the part of an enactment that is constitutionally infirm will be invalidated, leaving the rest intact." National Advertising Co. v. Orcut.ee, 861 F.2d 246, 249 (9th Cir.1988). See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 1479, 94 L,.Ed.2d 661 (1987). We hold uncons- titutional only those provisions of the ordinances which impermissibly restrict the scope of political speech through limitations on the time and place for the preelection posting of political signs. Tacoma's interests in aesthetics and traffic safety are sufficient to justify reasonable, content- neutral regulation of the noncommunicative aspects of political signs, such as size, spacing, and consent of the private property owner. 1 161 We are sensitive to the need for judicial re- straint in intruding on the exercise of the police power by local governments to regulate land uses in the interest of public health, safety, and welfare. Conse- quently, our holding does not compel a change to postevent removal requirements as long as such re- quirements are reasonable and apply to all temporary events, such as political campaigns, home sales and residential renting. While preelection political speech interests may outweigh a municipality's regulatory interests in a given case, those same interests are not present postevent and may be outweighed by a * *1059 municipality's demonstrated interests in aesthetics or traffic safety. See Baldwin v. Redwood City, supra (10 -day postelection removal requirement upheld). © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) *762 IV f 171 Collier assigns error to the trial court's holding that the "special circumstances" of trial pub- licity and representation by the ACLU preclude an award of attorney fees under 42 U.S.C. § 1988. Collier also requests additional fees for the purposes of this appeal. 1 181 A party prevailing in an action under 42 U.S.C. § 1983 may recover reasonable attorney fees pursuant to 42 U.S.C. § 1988. Jacobsen v. Seattle. 98 Wash.2d 668. 675. 658 P.2d 653 (1983). A prevailing plaintiff " `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' " Jacobsen, at 675 -76. 658 P.2d 653 (quoting Newman v. Pix£'ie Park Enters., Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)). In the instant case, the trial court ruled in favor of plaintiffs Collier and Beritich. They are "prevailing parties" for the purposes of the statute. The trial court, however, identified publicity gained by the suit and ACLU representation as "special circumstances" which warranted denial of an award of attorney fees. We disagree. In Runyon v. Fasi, 762 F.Supp. 280 (D.Haw.1991), the plaintiff requested attorney fees pursuant to 42 U.S.C. § 1988 in a factually similar action challenging the constitutionality of a city or- dinance which prohibited outdoor political signs. The Runyon court addressed the identical issue of public service representation as a "special circumstance ". We agree with the Runyon court's conclusion that the fact that the prevailing party was represented by a public service firm or association funded by public funds is irrelevant. See Runyon, 762 F.Supp. at 286 (citing Watkins v. Mobile Housing Bd., 632 F.2d 565 (5th Cir.1980)). As to the issue of trial publicity, Tacoma urges this court to accept the trial court's denial of attorney fees as a proper use of discretion. The trial court, however, made no finding that Collier used the judicial system to gain publicity for political purposes. Tacoma argues that should this court reverse the trial court on the issue of attorney fees, the court should limit the amount of attorney fees to reflect work performed from the *763 point after which the complaint was amended. Tacoma reasons that until respondents filed the amended complaint which cited 42 U.S.C. § 1988 as statutory authority for attorney fees, Tacoma had no notice of any claim for attorney Page 15 fees. We disagree. Tacoma had notice of respondents' claim for attorney fees with the filing of Collier's original complaint. Collier's amendment of his com- plaint to add an additional source of authority for obtaining attorney fees does not alter the fact that Tacoma had sufficient notice to prepare an adequate response to Collier's request for attorney fees. The final issue to resolve is whether the requested fees were reasonable. The trial court found that the plaintiffs' attorney had spent 99.3 hours in the prose- cution of this action, and "said hours have been ex- pended reasonably and necessarily in view of the result obtained." The trial court also found that the plaintiffs' attorney's hourly rate of $150 was reasona- ble compensation for the work performed. These findings were uncontroverted. We will not disturb these findings on appeal. CONCLUSION The Tacoma ordinances impermissibly restrict Collier's right to political expression in violation of article 1. section 5 of the Washington Constitution, and the first and fourteenth amendments to the United States Constitution. We hold unconstitutional those portions of the Tacoma ordinances that impose dura- tional limitations on the preelection posting of politi- cal signs. We remand for a determination of a rea- sonable* *1060 attorney fee, to include a determina- tion of attorney fees on appeal. UTTER, DOLLIVER, SMITH and JOHNSON, JJ., concur. DURHAM, Justice (concurring). For 15 years, this court has wrestled with the dif- ficult concept of independent state constitutional analysis. The circumstances under which it should be applied has been the subject of many divided opinions and *764 considerable acrimony. Finally, in 1986, this court unanimously agreed on a list of six nonexclusive criteria to aid in determining when state constitutional analysis is appropriate. State v. Gunwall. 106 Wash.2d 54, 720 P.2d 808, 76 A1...R.4th 517 (1986). Shortly thereafter, in State v. Wethered. 110 Wash.2d 466. 472.755 P.2d 797 (1988), we unequivocally stated the necessity of employing the Gunwall criteria: Wethered urges this court to follow our holding in State v. Lavaris, 99 Wn.2d 851, 664 P.2d 1234 (1983) under Const. art. 1, § 9 and cites State v. Simpson, 95 Wn.2c1 170, 622 P.2d 1199 (1980) as © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) general authority that the Washington Constitution can be and has been interpreted as more protective of individual rights than the United States Consti- tution. He fails to use the Gunwall interpretive principles to assist this court.... By failing to discuss at a minimum the six criteria mentioned in Gunwall, he requests us to develop without benefit of argu- ment or citation of authority the "adequate and independent state grounds" to support his asser- tions. See Michigan v. Long. 463 U.S. 1032, 77 L.Ed.2d 1201, 103 S.Ct. 3469 (1983). We decline to do so consistent with our policy not to consider matters neither timely nor sufficiently argued by the parties. hi re Rosier, 1.05 Wn.2d 606, 616, 717 P.2d 1353(1986). (Italics mine.) Since Gunwall and Wethered, over 70 Washing- ton appellate decisions have acknowledged our rule barring consideration of state constitutional issues absent briefing of the Gunwall factors. E.g., State v. Greenwood, 120 Wash.2d 585, 614, 845 P.2d 971 (1993); Te/evik v. 31641 West Rutherford St., 120 Wash.2d 68, 77, 838 P.2d 1 1 1 . 845 P.2d 1325 (1992); State v. Rodriguez, 65 Wash.App. 409, 414 11. 1, 828 P.2d 636, review denied, 119 Wash.2d 1019. 838 P.2d 692 (1992). In fact, one noteworthy commentator has explained that: Assistance from counsel in interpreting state constitutional provisions is vitally important. We- thered directs counsel to bring the constitutional issues into as sharp a focus as they possibly can by requiring them to fashion a state constitutional ar- gument that addresses textual language, constitu- tional and common law history, structural differ- ences, and local concerns. Our decision in Wethered reaffirmed that the criteria are a necessary starting point for a discussion between bench and bar about the meaning of a state constitutional provision. (Italics mine.) Justice Robert F. Utter, *765The Practice of Principled Decision- Making in State Constitutionalisni: Washington's Experience, 65 Temp.L.Rev. 1153. 1 162 (1992). This same com- mentator has recognized that "Gunwall functions as a procedural threshold for considering state constitu- tional claims ". (Italics mine.) Utter, supra, at 1165. Today, however, 8 years of painfully crafted ju- Page 16 risprudence is cast aside in a footnote: "[b]ecause [ Bering v. Share, 106 Wash.2d 212. 721 P.2d 918 (1986) 1 is a post - Gunwall case without Gunwall analysis, it might be construed not to call for such an analysis. For this reason, in this case only, we will not require a separate analysis of the nonexclusive factors in Gunwall to reach the state constitutional issue." Majority, at 1051 n. 5. This reasoning completely ignores the Wethered rule, which was adopted 2 years after Bering. Moreover, putting aside the majority's attempt to limit its own case to the facts, there is no principled way to keep this exception from swallow- ing the rule. Bering was not unique. There were sev- eral cases between Gunwall and Wethered that en- gaged in a state constitutional exegesis without the * *1061 benefit of the Gunwall factors. See, e.g., Seattle v. Mesiani. 110 Wash.2d 454. 755 P.2d 775 (1988) (interpreting Const. art. 1, § 7); O'Day v. King Cv.. 109 Wash.2d 796. 801 -02, 749 P.2d 142 (1988) (interpreting Const. art. 1, § 5); State v. Stroud. 106 Wash.2d 144.720 P.2d 436 (1986) (plurality opinion) (interpreting Const. art. 1, § 7). As such, the majority's analysis only serves to cast doubt on a wide body of law under Const. art. 1, §§ 5 and 7 requiring briefing of the Gunwall factors. If, indeed, it is the intention of a majority of this court to cast aside the Gun - wall/Wethered principles, it should be done forth- rightly and with reasoned analysis.F1 FN I. It is so that "[t]his court has a duty, where feasible," to consider state constitu- tional analysis. (Italics mine.) Majority, at 1050. However, the case cited in the lead opinion for this proposition, O'Day. 109 Wash.2d at 801 -02, 749 P.2d 142 (citing State v. Coe, 101 Wash.2d 364, 373 -74, 679 P.2d 353 (1984)), was decided prior to the Wethered rule. In fact, Wethered specifically recognized that this language from O'Day and Coe was limited by, and subject to, briefing of the Gunwall factors. See 110 Wash.2d at 471 -72, 720 P.2d 808. Ironically, the majority's result in negating the Tacoma sign ordinance could be reached under federal law analysis. See, e.g., *76613urson v. Freeman. 504 U.S. 1 9 1 , 1 1 2 S.Ct. 1846, 1 19 1..Ed.2d 5 (1992) (both plurality and dissent would require strict scrutiny for content - based, but viewpoint - neutral speech); Antioch v. Candidates Outdoor Graphic .Sere.. 557 F.Supp. 52 (N.D.CaI.1982) (law banning posting of political signs © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 854 P.2d 1046 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 (Cite as: 121 Wash.2d 737, 854 P.2d 1046) except for 60 days prior to election violated equal protection clause). It is only because of the applica- bility of federal law that I concur in the result. ANDERSEN, C.J., and BRACHTENBACH, J., con- cur. Wash.,1993. Collier v. City of Tacoma 121 Wash.2d 737, 854 P.2d 1046, 62 USLW 2036 END OF DOCUMENT © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 17 Westlaw, 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) c Court of Appeals of Oregon. Roger M. VAN and Michael Fitzgerald, Petitioners, v. The TRAVEL INFORMATION COUNCIL of the State of Oregon, Respondent. No. CA 18553. Argued and Submitted Nov. 12, 1980. Decided May 26, 1981. Proceeding was instituted to obtain judicial re- view of an administrative rule promulgated by the Travel Information Council. The Court of Appeals, Gillette, P. J., held that: (1) portion of administrative rule adopted by Travel Information Council limiting right to erect temporary political signs on land adja- cent to a state highway to a period of 60 days pre- ceding an election, assuming it represents a valid time, place and manner regulation and is not an improper restriction on content, is nevertheless unconstitutional in that it imposes significant restriction on political speech, and (2) limitation of 60 days imposed by ad- ministrative rule on maintenance of political campaign signs prior to an election is unconstitutional as viola- tive of equal protection in that it treats certain com- mercial signs more favorably than political signs, a distinction not reasonably related to any appropriate governmental interest. Rule held invalid. West Headnotes 1� Constitutional Law 92 €1681 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k 168 1 k. Political Speech, Beliefs, or Activity in General. Most Cited Cases (Formerly 92k90.1(1.2), 92k90.1(1)) Political speech, as opposed to other types of speech, is afforded maximum protection under the Page 1 First Amendment, but it is not completely unfettered and is subject to reasonable time, place and manner restrictions. U.S.C.A.Const. Amend. 1. a Constitutional Law 921710 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k1710 k. Signs. Most Cited Cases (Formerly 92k90.1(1.2), 92k90.1(1)) Highways 200 <`-''153.5 200 Highways 200IX Regulation and Use for Travel 200IX( A) Obstructions and Encroachments 200k153.5 k. Billboards and Highway Beautification in General. Most Cited Cases Statutory and regulatory scheme which limits the right to erect temporary political signs on land adja- cent to a state highway, but does not absolutely pro- hibit the erection and maintenance of those signs must be examined for its constitutionality as time, place and manner restriction rather than as an absolute ban. ORS 183.400(1, 4), 377.700- 377.840, 377.992; 23 U.S.C.A. § 131 et seq.; U.S.C.A.Const. Amend. 1. 1,3.1 Constitutional Law 92 €1514 92 Constitutional Law 92XV111 Freedom of Speech, Expression, and Press 92XVI11(A) In General 92XVIII(A)1 In General 92k 151 l Content - Neutral Regulations or Restrictions 92k 1 514 k. Narrow Tailoring Re- quirement; Relationship to Governmental Interest. Most Cited Cases (Formerly 92k90(3)) Constitutional Law 921515 © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XV1II(A) In General 92XVIII(A)1 In General 92k1511 Content - Neutral Regulations or Restrictions 92k1515 k. Existence of Other Channels of Expression. Most Cited Cases (Formerly 92k90(3)) Reasonable restrictions relating to the time, place and manner in which the right to free speech is exer- cised is permissible if they are justified without ref- erence to the content of the regulated speech, serve a significant governmental interest, and leave open ample alternative channels for communication of information. U.S.C.A.Const. Amend. 1. f 41 Constitutional Law 92 €'1504 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(A) In General 92XV1II(A)1 In General 92k1504 k. Exercise of Police Power; Relationship to Governmental Interest or Public Welfare. Most Cited Cases (Formerly 92k90(3)) In measuring the effect of a statute or regulation on free expression, careful consideration must be given to whether challenged regulation is more inclu- sive or more burdensome than necessary to require legitimate governmental purposes it is designed to foster. U.S.C.A.Const. Amend. 1. L5_1. Constitutional Law 92 € '1504 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(A) In General 92XVIII(A) 1 In General 92k1504 k. Exercise of Police Power; Relationship to Governmental Interest or Public Welfare. Most Cited Cases (Formerly 92k90(1)) Page 2 First Amendment freedoms must be kept in a preferred position; a regulation can be no more re- strictive than reasonably necessary to serve the go- vernmental interest involved. U.S.C.A.Const. Amend. 1. IC Constitutional Law 92 X1505 92 Constitutional Law 92XV1.1.I Freedom of Speech, Expression, and Press 92XV1I1(A) In General 92XVIII(A)1 In General 9211505 k. Narrow Tailoring. Most Cited Cases (Formerly 92k90(1)) Where First Amendment rights are involved, re- strictions must be narrowly drawn. U.S.C.A.Const. Amend. 1. L7]. Constitutional Law 92 01710 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k1710 k. Signs. Most Cited Cases (Formerly 92k90.1(4)) Highways 200 € 153.5 200 Highways 200IX Regulation and Use for Travel 200IX(A) Obstructions and Encroachments 200k153.5 k. Billboards and Highway Beautification in General. Most Cited Cases Statutory exemptions accorded political signs from erection, location and permit requirements are based on content and, to extent that they treat such signs better than other signs, reflect an appropriate governmental interest and cannot be faulted constitu- tionally. ORS 183.400(1, 4), 377.700- 377.840, 377.992; 23 U.S.C.A. § 131 et seq.; U.S.C.A.Const. Amend. I . LE Constitutional Law 92 1710 91 Constitutional Law © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) 92XVIII Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k1710 k. Signs. Most Cited Cases (Formerly 92k90.1(4)) Highways 200 €- '153.5 200 Highways 2001X Regulation and Use for Travel 200IX(A) Obstructions and Encroachments 200k153.5 k. Billboards and Highway Beautification in General. Most Cited Cases Portion of administrative rule adopted by Travel Information Council limiting right to erect temporary political signs on land adjacent to a state highway to a period of 60 days preceding an election, assuming it represents a valid time, place and manner regulation and is not an improper restriction on content, is nev- ertheless unconstitutional in that it imposes a signifi- cant restriction on political speech. ORS 183.400(1, 41, 377.700 - 377.840, 377.992; 23 U.S.C.A._§ 131 et seq.; U.S.C.A.Const. Amend. 1. j91 Constitutional Law 92€3526(3) 92 Constitutional Law 92XXV1 Equal Protection 92XXVI(E) Particular Issues and Applications 92XXVI(E)4 Government Property, Facili- ties, and Funds 92k3524 Transportation 92k3526 Roads, Streets, Highways, and Sidewalks 92k3526(3) k. Billboards and Signs. Most Cited Cases (Formerly 92k235) Highways 200 €153.5 200 Highways 200IX Regulation and Use for Travel 200IX(A) Obstructions and Encroachments 200k153.5 k. Billboards and Highway Beautification in General. Most Cited Cases Limitation of 60 days imposed by administrative rule on maintenance or political campaign signs prior to an election is unconstitutional as violative of equal Page 3 protection in that it treats certain commercial signs more favorably than political signs, a distinction not reasonably related to any appropriate governmental interest. ORS 183.400(1, 4), 377.700- 377.840, 377.992; 23 U.S.C.A. § 131 et seq.; U.S.C.A.Const. Amend. 14. *400 * *1219 Steven L. Philpott, Eugene, argued the cause for petitioners. On the brief were Mary A. Marshall and Armstrong & Philpott, P. C., Eugene. William F. Gary, Deputy Sol. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., and John R. McCulloch, Jr., Sol. Gen., Salem. Before GILLETTE, P. J., ROBERTS, J., and CAMPBELL, J. Pro Tem. *401 GILLETTE, Presiding Judge. This is a proceeding pursuant to ORS 183.400(1 ),IFN l 1 Petitioners JFN21 challenge that portion of an administrative rule adopted by the Travel Information Council which limits the right to erect temporary political signs on land adjacent to a state highway to a period of sixty days preceding an elec- tion. OAR 733- 20- 050(3)(a), infra. Petitioners claim that the rule violates the First Amendment and the equal protection clauses of both the Oregon and United States Constitutions. We agree and therefore declare the rule invalid. ORS 183.400(4),IFN31 FN 1. ORS 183.400(1) provides, in pertinent part: "(1) The validity of any rule may be de- termined upon a petition by any person to the Court of Appeals in the manner pro- vided for review of orders in contested cases * * *." FN2. The interest of these particular peti- tioners is not part of the record before us. We note petitioners' claimed interest as set forth in the brief. Petitioner Van claims an interest by virtue of his ownership of real property located adjacent to state Highway 99. Peti- tioner Fitzgerald was, at the time of the peti- tion, seeking election as a representative from the State of Oregon to the United States © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) Congress. He was unsuccessful. FN3. ORS 183.400(4) provides that this court is to declare a rule invalid if we find that the rule: "(4) Violates constitutional provisions, exceeds the statutory authority of the agency or was adopted without compliance with applicable rulemaking procedures." Before turning to an examination of petitioners' specific claims, it is necessary to understand the fed- eral and state statutory scheme of which the chal- lenged regulation is a part. OAR 733 -20 -050 was promulgated by the Oregon Travel Information Council pursuant to authority granted by the Oregon Motorist Information Act of 1971. ORS 377.700 to 377.840 and 377.992. That Act was enacted in re- sponse to the 1965 federal Highway Beautification Act. 23 U.S.C. s 131 et seq. The federal Act is designed to persuade the states, by means of financial incentives, to use their police power to control the erection and maintenance of outdoor advertising structures adjacent to the Inter- state and primary highway systems. Its purpose is "to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural *402 beauty." 23 U.S.C. s 131(4. The Act provides for the reduction of federal aid highway funds by an amount equal to 10 percent of the sum which would otherwise be apportioned on or after January 1, 1968, to any state which the Secretary of Transportation determines has not made provision for "effective control" of the erection and maintenance of outdoor advertising structures. 23 U.S.C:. s 131( b),I FN41 "Effective control" means that signs, displays, or devices within the prescribed area shall be limited to FN4. Originally, each state was to provide for "effective control" of advertising struc- tures which were within 660 feet of the nearest edge of the right -of -way and visible from the main traveled portion of the Inter- state and primary highway systems. In 1975, the area to be controlled was expanded to include signs beyond 660 feet and visible from the highway. 23 U.S.C.. s 131(b), as amended. Page 4 "(1) * * * directional and official signs and no- tices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and de- vices advertising the sale or lease of property upon which they are located, (3) signs, displays, and de- vices, including those which may be * *1220 changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are lo- cated, (4) signs lawfully in existence on October 22, 1965, determined by the State, subject to the ap- proval of the Secretary, to the landmark signs, in- cluding signs on farm structures or natural surfaces, of historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices adver- tising the distribution of nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term `free coffee' shall include coffee for which a donation may be made but is not required." 23 U.S.C. s 131(c), as amended. The Act further provides that, pursuant to an agreement between a state and the Secretary of Transportation, advertising structures may be erected and maintained within the proscribed distance in areas which are zoned industrial or commercial under au- thority of state law *403 or within unzoned commer- cial or industrial areas. States retain the full authority to zone areas for commercial or industrial purposes, and the actions of the states in this regard are to be accepted for purposes of the Act. Advertising struc- tures erected pursuant to this section are subject to certain size, lighting and spacing requirements, which are to be determined by agreement between the states and the Secretary. 23 U.S.C. s 131(d), as amended. The Act also provides for payment of just com- pensation to owners of outdoor advertising signs along the Interstate and primary system upon the removal of certain kinds of advertising structures, with the federal © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) government providing 75 percent of the compensa- tion. 23 U.S.C. s 131(g). There is a grace period of 5 years for the removal of structures previously lawfully erected. 23 U.S.C. s 131(e). In compliance with the federal Act, the Oregon Motorist Information Act provides: "A person may not erect or maintain an outdoor advertising, direction or on- premises sign visible to the traveling public from a state highway, except where permitted outside the right -of -way of a state highway, * * *." ORS 377.715. In order to erect, maintain or replace an outdoor advertising sign, an annual permit must first be ob- tained. ORS 377.725(1). An annual fee, dependent upon the size of the sign, must accompany each ap- plication for a permit. ORS 377.725(5). The Oregon Act, as mandated by the federal statutes, is designed to phase out outdoor advertising structures. Thus, no permit for the erection of any new outdoor advertising sign could be issued after June 12, 1975. ORS 377.725(4). All signs must comply with certain size, spacing, lighting, form, and other like requirements. See ORS 377.720, 377.727, 377.745, 377.750, 377.755. Signs must not interfere with a driver's view of official traffic signs or his or her view of traffic. ORS 377.720(b). The express purposes of the Oregon Act, insofar as relevant, are "to promote the public safety, to preserve the recreational value of public travel on state's highways, and to preserve the natural beauty and aesthetic features of such highways and adjacent areas * * *." ORS 377.705. *404 Certain signs are exempted by statute from the Oregon Act's permit and location requirements. These include signs permitted by the federal Act, such as directional and official traffic signs and signs ad- vertising the sale or lease of property upon which they are located. Certain other temporary signs are also allowed, e. g., temporary signs providing directions to places of business offering for sale agricultural prod- ucts produced on the premises in question, signs maintained for not more than two weeks announcing an auction or a campaign, drive or event of a civic, philanthropic or educational organization; signs maintained for not more than six weeks by state and county fairs, rodeos, roundups and expositions; and temporary political signs erected or maintained by candidates or political committees on private property Page 5 if the sign is removed within 30 days after the date of the election for which erected. The full * *1221 text of the exemptions, ORS 377.735(1), is set out in the margin.) FN51 FN5. ORS 377.735(1) provides: "(1) If applicable federal regulations are met, the permit requirements of ORS 377.700 to 377.840 do not apply to: "(a) Signs with an area of not more than 260 square inches identifying motor bus stops or fare zone limits of common carri- ers. "(b) Signs erected and maintained by a city showing the place and time of services or meetings of churches and civic organiza- tions in the city; however, not more than two such signs may be erected and main- tained that are readable by the traveling public proceeding in any one direction on any one highway. "(c) Residential directional signs along highways other than fully controlled access highways; however, this paragraph does not apply if a professional, commer- cial or business activity is maintained at the location and the sign indicates its ex- istence. "(d) Official traffic control signs. "(e) Signs of a governmental unit including but not limited to regulatory devices, legal notices or warnings. "(f) Small signs displayed for the direction, instruction or convenience of the public, including signs which identify restrooms, freight entrances, posted areas or the like, with total surface area not exceeding four square feet. "(g) Signs maintained for not more than two weeks announcing an auction or a campaign, drive or event of a civic, phi- lanthropic or educational organization. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) "(h) Memorial signs or tablets. "(i) Signs maintained for not more than six weeks by state and county fairs, rodeos, roundups and expositions. "(j) Directional signs maintained tempo- rarily to provide directions to places of business offering for sale agricultural products harvested or produced on the premises where the sale is taking place. "(k) A sign advertising the sale of real es- tate by the owner or his agent and erected on the advertised premises. "(L) Signs warning of hazards or danger on the property upon which they are located, or warning against hunting, fishing or trespassing upon such property. "(m) Signs approved by the engineer and erected by a utility or common carrier for the purpose of notices necessary for the information, safety or direction of the public. "(n) Church directional signs not to exceed six square feet in size, installed on private property. "(o) Temporary political signs erected or maintained by candidates or political committees on private property, if the sign area does not exceed 32 square feet and if the sign is removed within 30 days after the date of the election for which erected." ORS 377.735(2) permits the Travel Information Council to adopt regulations as to the size, number and general location and as to the time and procedure for erection and removal of temporary signs.FFN61 Signs erected or maintained within a city more than 660 feet from the nearest edge of the right -of -way of a state highway are also exempt signs unless the sign is de- signed to be viewed primarily from the state highway. ORS 377.735(3). All exempted signs must still comply with any applicable federal regulations. ORS 377.735(1). Page 6 FN6. ORS 371.735(2) provides: "(2) The signs referred to in paragraphs (b), (c), (e), (g) to (L), (n) and (o) of sub- section (1) of this section shall be subject to regulations adopted by the council as to the size, number and general location and as to time and procedure for erection and removal of temporary signs." Pursuant to ORS 377.735(2), the Council has adopted regulations, including the one before us, re- lating to the erection and maintenance of exempt signs. These regulations vary according to the type of sign and pertain to location, size, form and, in some instances, number and time limit. See OAR 733 -20 -005 to 733-20-050. The following signs have no durational limits: church and civic organization signs, residential directional signs, signs of a go- vernmental unit, memorial signs and tablets and church *406 directional signs. Signs advertising the sale of property on which they are located and tem- porary directional signs advertising the sale of agri- cultural products are not limited as to time of erection but must be removed upon completion of the sale of the product. Other signs have more specific limita- tions: temporary civic signs must be removed within two weeks of installation, but not later than 24 hours after completion of the advertised event; exposition, fair and rodeo signs must be removed six weeks after erected but, not later than 24 hours after closing of the event; and temporary political signs may not be erected prior to 60 days preceding the date of the election to which they pertain and must * *1222 be removed within 30 days after the election. Petitioners challenge the 60 day limitation on temporary political signs as set forth in OAR 733- 20- 050(3)(a),IFN71 arguing that it violates their right to freedom of speech.jFN81 In this regard, peti- tioners argue that, because political speech is in- volved, erection of signs of this type is entitled to absolute protection, i. e., it cannot be regulated at all. Secondly, they argue that, assuming some regulation is permissible, the regulatory limit in question here does not qualify as a valid "time, place and manner" restriction. Alternatively, they argue that, even if the rule is construed as a valid time, place and manner regulation, it cannot be sustained because the state has failed to demonstrate a sufficiently compelling state © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) interest to justify it. Petitioners also claim that the rule in question violates equal protection principles, be- cause it impermissibly discriminates between tempo- rary political signs and other types of temporary signs with respect to time limitations. FN7. OAR 733 -20 -045 provides, in pertinent part: " * * * "(3) Erection and Removal: Signs erected under this rule are subject to the following conditions: "(a) Signs may not be erected prior to 60 days preceding the election date; "(b) Signs must be removed within 30 days after election date; FN8. Contrary to the state's suggestion, peti- tioners do not also challenge the requirement that signs must be removed 30 days after the election. *407 The Council argues that its rule is not a prior restraint on speech which must be justified by a compelling state interest but is, rather, a reasonable regulation on the time, place and mariner of speech. It argues that the governmental interest, along with other factors, can be weighed against the individual interest. It points to the state's interest in promoting highway safety and beauty and in receiving its full share of federal aid for highways. It notes that the rule is li- mited in application and argues that there are ample alternatives for communication by political candi- dates; thus, it argues, the rule does not impose an undue burden on First Amendment rights. It contends that petitioners' equal protection claim is unfounded because the time limits on political signs are reasona- bly calculated to further the general purposes of state and federal sign legislation and the difference in time restrictions for the different types of signs is a rea- sonable response to the practical requirements of the various forms of communications. 1. Petitioners' Claim of Absolute Protection for Polit- Page 7 ical Speech 111 f 21 Initially, we reject petitioners' claim that political speech enjoys absolute protection and cannot be regulated. It is true that political speech, as opposed to other types of speech, is afforded maximum pro- tection under the First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 270. 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964); Garrison v. Loui- siana, 379 U.S. 64, 74 -75, 85 S.Ct. 209. 215 -216, 13 L.Ed.2d 125 (1964); Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (.1971); John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980); Baldwin_v. Redwood City. 540 F.2d 1360 (9th Cir. 1976), cert. den. 431 U.S. 913, 97 S.Ct. 2173. 53 L.Ed.2d 223 (1977). However, not even the right of political expression is completely unfettered. The Supreme Court has repeatedly recognized the consti- tutionality of reasonable "time, place and manner" restrictions on the exercise of free speech rights. See e. g., Police Department of Chicago v. Mosley. 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Cox v. Louisiana, 379 U.S. 536. 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Kovacs v. Cooper, 336 U.S. 77. 69 S.Ct. 448, 93 L.Ed. 513 (1949); *408Cox v. New Hampshire. 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). The statutory and regulatory scheme before us does not absolutely pro- hibit the erection and maintenance of political cam- paign signs; it regulates the time, place and manner of their erection and maintenance. Therefore, we ex- amine the regulation in * *1223 question not as an absolute ban but as a time, place and manner restric- tion. 2. Time, Place and Manner Restriction 131141[51161 "Laws regulating time, place or manner of speech stand on a different footing from laws prohibiting speech altogether." Linmark Asso- ciates. Inc. v. Willingboro, 431 U.S. 85.97 S.Ct. 1614. 52 L.Ed.2d 155 (1977). Reasonable restrictions re- lating to the time, place and manner in which the right to free speech is exercised are permissible if " * * * they are justified without reference to the content of the regulated speech, they serve a sig- nificant governmental interest, and * * * in so doing, they leave open ample alternative channels for communication of information." Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council Inc., 425 U.S. 748, 771, 96 S.Ct. 1817. 1830. 48 © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) L.Ed.2d 346 (1976). In measuring the effect of the statute or regulation on free expression, "careful consideration must also be given to whether the challenged regulation is more inclusive or more burdensome than necessary to fur- ther the legitimate governmental purposes (it is de- signed to foster)." Baldwin v. Redwood City. supra, 540 F.2d at 1367: see also United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). First Amendment freedoms must be kept in a preferred position; a regulation can be no more re- strictive than reasonably necessary to serve the go- vernmental interest involved. Brown v. Clines, 444 U.S. 348. 355, 100 S.Ct. 594, 599. 62 L.Ed.2d 540 (1980); John Donnelly & Sons v. Campbell, supra, 639 F.2d at 8. Where First Amendment rights are involved, restrictions must be "narrowly drawn." Central Hudson Gas v. Public Service Comm'n, 447 U.S. 557, 567. 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341, 350 (1980); Baldwin v. Redwood City, supra, 540 F.2d at 1567. El With these constitutional principles in mind, we turn to the regulation before us. We note first that the Oregon statute as a whole is not directed to con- tent. Billboards are regulated, and in some cases banned altogether, *409 not because of the messages they convey but because the medium of communica- tion is itself objectionable. See John Donnelly & Sons v. Campbell, supra, 639 F.2d at 8; Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407 (1980), prob juris noted, — U.S. 101 S.Ct. 265, 66 L.Ed.2d 127 (1980). On the other hand, the exemptions from the erection, location and permit requirements are based on content, and politi- cal campaign signs are treated as exemptions. To the extent that such signs are treated better than other signs, however, the statute cannot be faulted on this ground.[FN91 Moreover, as one court has noted in its examination of a similar state statute, each of these exceptions reflects "an appropriate governmental interest." John Donnelly & Sons v. Campbell, supra, 539 F.2d at 9. FN9. The fact is, however, that temporary political signs do not enjoy a preferred posi- tion. See the equal protection discussion, post. [81 Like the exemptions, the regulations which Page 8 implement the exemptions appear to be based upon content: how long an exempt sign may be maintained depends upon the message that sign seeks to convey. However, we need not decide if this distinction in the regulations based upon content is impermissible. Even if we assume that the regulation before us is a valid time, place and manner regulation and not an improper restriction on content, it cannot stand. Although the regulation seeks to further legitimate state interests, we conclude that these interests are insufficient to justify the significant restriction on political speech it imposes. Before outlining the reasons for our conclu- sion, we think an examination of the case law in this area and a closer look at the effect of the Oregon Act is helpful. There are innumerable decisions examining state statutes and city ordinances regulating the erection and maintenance of billboards. A number of court decisions * *1224 have upheld local and state regula- tions which prohibit the posting of off - premise signs and which have limited exceptions such as those in the statute before us. The stated interests justifying such broad bans on outdoor advertising structures are most often identified as traffic safety and aesthetics. Some courts have found aesthetics alone to be a sufficient basis for the restrictions. See e. g., *410Metromedia. Inc. v. City of San Diego. supra. 26 Ca1.3d 848, 164 Cal.Rptr. 510. 610 P.2d 407; State v. Lotze, 92 Wash.2d 52, 593 P.2d 811 11979), appeal dismissed 444 U.S. 921. 100 S.Ct. 257. 62 L.Ed.2d 177 (1979); Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968), appeal dismissed 393 U.S. 316, 89 S.Ct. 551 21 L.Ed.2d 512 (1979); Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312.600 P.2d 258 (1979), appeal dismissed 446 U.S. 930. 100 S.Ct. 2145, 64 L.Ed.2d 783 (1980); Newman Siens, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978), appeal dismissed 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979); Veterans of For. Wars, Etc. v. Steamboat Sprines, 575 P.2d 835, 195 Colo. 44 (1978), dismissed for want of substantial federal question, 439 U.S. 809, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978); Suffolk Outdoor Advertising Co., Inc. v. Hulse. 43 N.Y.2d 483.402 N.Y.S.2d 368. 373 N.E.2d 263 (1977), appeal dismissed 439 U.S. 808. 99 S.Ct, 66. 58 L.Ed.2d 101 (1978); Donnelly Advertising Corp. v. City of Baltimore, 279 Md, 660, 370 A.2d 1 127 ( 1977); John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206. 339 N.E.2d 709 (1975); E. B. Elliott Adv. Co. v. Metropolitan Dade County. 425 F.2d 1 141 (5th Cir. 1970); United Advertising Corp. v. Boroueh of Raritan, 11 N.J. 144. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) 93 A.2d 362 (1952); see generally 81 A.L.R.3d 486 -556 (1977). IFN 101 FN 10. Petitioners have failed to cite any billboard cases. The Council relies on State v. Lotze. 92 Wash.2d 52, 593 P.2d 811 (1979), discussed infra, and State ex rel. Dept. of Transp. v. Pile. 603 P.2d 337 (Ok1.1979), appeal pending, 446 U.S. 980. 100 S.Ct. 2960. 64 L.Ed.2d 837 (1980). The Council's reliance on the decision in Pile is misplaced. In that case the court held that a statute prohibiting all billboards on rural byways did not include billboards used for purposes of non - commercial speech. The court reasoned that to read the act as includ- ing all billboards would raise serious First Amendment problems. In most of these cases the petitioner's interest and the court's opinion are limited to the challenged reg- ulation's effect on purely commercial speech. The major exception to this focus is the decision by the Washington Supreme Court in State v. Lotze, supra. In that case, the court specifically considered the prohi- bition against off -site advertising as it related to po- litical speech. The court found that the state law, which sets out the requirements and exceptions of the federal Act and in effect prohibits political and public issue signs, did not violate the First Amendment to the federal Constitution. State v. Lotze, supra, 92 Wash.2d 52, 593 P.2d 811:, see also Donnelly Adver- tising Corp. v. City of Baltimore, supra, 279 Md. 660, 370 A.2d 1 127. However, the majority of the court decisions on this latter, specific issue of interference with political *411 speech are contrary to Lotze. Regulations which prohibit all political and ideological signs in a given location, e. g., in a city or on the state's highways, have been repeatedly found to be unconstitutional. See, e. g., John Donnelly & Sons v. Campbell, supra; State v. Miller, 83 N.J. 402, 416 A.2d 821 (1980); Martin v. Wray, 413 F.Supp. 1131 (E.D.Wis.1979); Aiona v. Pai, 516 F.2d 892 (9th Cir. 1975); Ross v. Goshi, 351 F.Supp. 949 (17. Hawaii 1972); Peltz v. City of South Euclid, 11 Ohio St.2d 128, 228 N.E.2d 320 (1967); Norate Corporation v. Zonina Board of Adjustment. 417 Pa. 397, 207 A.2d 890 (1965); People v. Mid - dlemark, 100 Misc.2d 760, 420 N.Y.S.2d 151 (1979). Page 9 Like the federal Act and the state statutes and ordinances examined in the cases noted above, the Oregon Act attempts to eliminate outdoor advertising from a particular area, viz., the state and federal highway system. Commercial signs are banned unless they involve the sale of the property on which they are located or are temporary directional signs relating to the sale of agricultural products on the property on which they were produced. These are so called "on-premises" signs. The Act, as noted, also exempts official and motorist informational* *1225 signs and certain temporary signs advertising civic functions, state and county events and political signs. The polit- ical sign exemption is limited. It applies only to po- litical signs erected or maintained by candidates or political committees and only to signs related to cur- rent political campaigns. There is no provision al- lowing persons other than candidates or committees to erect campaign signs in support of the candidate of their choice. Further, the exemption does not apply to other political issues or ideological speech which is not the subject of an election. Messages such as "Support E.R.A.," "No Nukes" or "Guns don't kill people people kill people" are banned altogether from the highways. The regulation in question here narrows the po- litical sign exemption even further than does the sta- tute. By its provisions, such campaign signs as are permitted can only be erected for 60 days preceding an election. This regulation is, in the context of the larger statutory scheme, a significant restriction on political speech. Unlike many of the cases discussed above, we are not here asked to decide the constitutionality of the Oregon *412 Motorist Information Act as a whole. Petitioners challenge only the 60 day limitation on the erection of political signs. They do not take issue with the banning of ideological signs altogether, or the fact that only candidates and committees can erect political campaign signs. But See John Donnelly & Sons v. Campbell, supra, 639 F.2d 6. We turn now to the limited inquiry before us. The stated purposes of the Oregon Act are three: highway safety, aesthetics and preservation of the state's recreational value.fFN1 I1 We have no doubt that these are legitimate state interests. We find it difficult, however, to find a relationship between the 60 day limitation on the erection of political signs and © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) public safety. Once political signs are allowed on a temporary basis, it is difficult to imagine how prohi- biting political signs at other times significantly pro- motes highway safety. It is apparent that other re- strictions on outdoor advertising structures such as spacing, size and lighting requirements are more closely related to the promotion of safe driving con- ditions. Limiting the time period during which polit- ical signs may be maintained is more closely related to considerations of aesthetics and preservation of the recreational value of Oregon's highways. These are, standing alone, valid state interests justifying the ex- ercise of the state's police power. See Oregon City v. Hartke, 240 Or. 35, 400 P.2d 255 (1965). JFN 121 Although we recognize the relationship between aes- thetic and recreational considerations and restricting the period of time during which signs will be visible from the highways, as we have already stated, we do not think that these interests are sufficient to justify the significant restriction on political speech imposed by the regulation. See John Donnelly & Sons v. Camp- bell, supra, 639 F.2d at 12. FN 1 1. The Council also contends that the state has an interest in receiving its full share of federal aid for the state's highways and that this interest is advanced by the questioned regulation. We have no doubt that the state has such an interest. However, the state's fi- nancial interest does not outweigh the con- stitutional interests asserted by the petitioners here. FN12. In Oregon City v. Hartke, supra, the court upheld an ordinance excluding auto- mobile wrecking yards from the city on aes- thetic grounds alone. Many of the decisions noted above have relied on the court's deci- sion in Hartke finding aesthetics to be a suf- ficient basis for the regulation and/or prohi- bition of off - premise billboards. *413 The bases for our conclusion are threefold. Initially, we find the 60 day limitation unnecessarily restrictive in light of the important First Amendment interests involved and the state's interest sought to be advanced. We agree with the analysis of the court in John Donnelly & Sons v. Campbell, supra, where the First Circuit held a Maine statute which prohibited most off- premises billboards unconstitutional because of its significant impact on ideological speech. The Page 10 court noted that signs erected for an election, primary or referendum within three weeks of the event were exempted from the Act's operation. The court held, however, that the exception did not go far enough it not only failed to provide for other types of public issue signs * *1226 but also limited the period of time during which the election signs could be maintained. As the court stated, " * * * we doubt that three weeks is enough time to publicize a campaign, particularly for the little known or unpopular candidate, or cause, with the greatest need for exposure." Id., at 15. It is true that the time limitation before us is more than twice as long as the one involved in the Donnelly case. However, the same reasoning applies. The process of acquainting the public with new candidates is a slow one. Two months is simply not enough time to allow a relatively unknown person to achieve household name familiarity. When Oregon's particular election scheme is considered, the unreasonable na- ture of the 60 day limitation becomes even more ap- parent: In Oregon, while primary elections are held in May, the general election is held the following No- vember almost six months later. See ORS 254.056. Secondly, although we recognize that alternative means of communication, i. e., means other than billboards along the state's highways, are available to political candidates, we find these to be inadequate. A persuasive decision in this area is that of the Ninth Circuit in Baldwin v. Redwood City, supra. 540 F.2d 1360. The city ordinance under scrutiny in that case provided for a permit system and contained detailed regulations governing the erection and maintenance of all types of outdoor signs within the city. Included were temporary signs which were limited to a period of 60 days before and 10 days after the event they *414 addressed. While exempted from various design and structural controls, temporary signs were subject to certain other regulations. Political campaign signs were included in the category of temporary signs. The court held that the ordinance's limit on the aggregate area of political signs on behalf of a single candidate or issue, its requirement that an application be filed before displaying temporary political signs and that a nonrefundable inspection fee be paid before display- ing signs, its provision requiring payment of $5 re- fundable deposit before displaying signs, its ban on display of signs in residential areas of the city and its provision permitting summary removal of any tem- porary political campaign sign under certain condi- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) tions were all unconstitutional on First Amendment grounds. [FN131 In considering the availability of alternative channels of communication, the court stated: FN 13. The Redwood City ordinance's 60 day limit on the maintenance of political signs was not challenged or considered by the court in Baldwin. "The existence of such alternatives is not alone enough to justify any regulation the city may desire to impose upon this means of expression. It is, however, a factor to be considered in striking the appropriate accommodation between free speech and legitimate governmental interests. "Its significance depends upon the nature of the First Amendment interest involved in the particular case, the purpose and the extent of the restriction imposed, and the availability of less restrictive means of accomplishing the legitimate govern- mental objective. As we have said, the First Amendment interests involved in the display of po- litical posters adjacent to public thoroughfares are substantial. Moreover, means of political commu- nication are not entirely fungible, political posters have unique advantages. Their use may be localized to a degree that radio and newspaper advertising may not. With exception of handbills, they are the least expensive means by which a candidate may achieve name recognition among voters in a local election." Id., at 1368. This view was reiterated by the court in John Donnelly & Sons v. Campbell, supra. In that case the court noted that outdoor advertising is a "far less ex- pensive means of communication than radio, televi- sion, newspaper or magazines" and that ideological and political speech *415 significantly depends upon outdoor advertising. 639 F.2d at 16. As the court stated, "Signs which can be cheaply erected particu- larly permit advancing poorly financed causes of little people." Ibid., quoting from * *1227Martin v. Struth- ers, 319 U.S. 141, 146, 63 S.Ct. 862, 87 L.Ed. 1313 (1943). Finally, we note that, although political signs are treated by the statute and regulation in question here better than many other types of signs, they are, by virtue of the regulation before us, treated worse than Page 11 some. In addition to official and informational signs, certain on- premise commercial signs, identified above, are not limited as to duration; the only limita- tion is that they must be removed after the sale they are advertising. Thus, the law may impact more heavily on the sale of ideas than on the sale of squash. Faced with a similar provision in the Maine statute, the court in John Donnelly & Sons v. Campbell, supra, con- cluded, and we agree, that such a result is "a peculiar inversion of First Amendment values." Id., at 15 -16. On the basis of the foregoing analysis, we con- clude that OAR 733- 20- 050(3)(a) infringes upon First Amendment rights by impermissibly restricting the scope of political speech through its limitations on the time for erection of political signs. 3. Equal Protection Considerations Although not necessary to our decision in this case, we wish to add one further observation con- cerning the regulation we are reviewing. The distinc- tion in the regulation between political and commer- cial speech raises Equal Protection as well as First Amendment issues. In Orazio v. Town of N. Hempstead. 426 F.Supp. 1144 (ED NY 1977), the court was faced with a town ordinance that limited the erection of political wall signs to six weeks preceding an election. The ordinance placed no time limits on non - political wall signs which advertised the nature of the business conducted on the premises. The court found that the ordinance violated both the First Amendment and the Equal Protection Clause. While recognizing the town's concern for aesthetic values, the court found the distinction between types of signs was not justified as political wall signs, in the court's view, were not inherently more obnoxious or ugly than other wall signs. In response to the *416 defen- dant's claim that political signs are by nature tempo- rary the court stated: "Whether temporary or not, politics is important business, and it is difficult to perceive what go- vernmental interest is served by placing time limits on the public's opportunity to be informed about candidates who are seeking public office or organ- izations which support them." Id.. at 1149. We agree. f FN l 41 FN14. Another decision which specifically discussed a time limit on the maintenance of © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 628 P.2d 1217 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 (Cite as: 52 Or.App. 399, 628 P.2d 1217) political signs is Ross v. Goshi, supra. In that case, political campaign signs were ex- empted from certain erection and mainten- ance requirements for the 60 day period preceding an election. The court found the time limit reasonable. However, the court noted that political signs were permitted at any time before the 60 day period as long as they conformed to the restrictions placed on other outdoor signs. The court in Orazio dis- tinguished the case before it from Ross on this basis. [91 We conclude that the 60 day limitation on the maintenance of political campaign signs prior to an election is unconstitutional. It violates both the First Amendment and the Equal Protection clause of the United States Constitution. The regulation is unduly restrictive and burdensome when the significant First Amendment interests involved are balanced against interests of the state it seeks to advance. Although alternative modes of communication are available, they are inadequate when compared to the manner of expression (billboards), and the location (the state highway system). Finally, the regulation treats certain commercial signs more favorably than political signs, a distinction not reasonably related to any appropriate governmental interest. I FN 1 5 1 FN 15. Normally, we would consider Oregon constitutional issues first. Here, however, the Council argues in part that it is compelled to the enactment of OAR 733- 20- 050(3)(a) by provision of the Federal Highway Beautifi- cation Act. Because we consider analysis under the federal Constitution dispositive, and in order to avoid a needless analysis of the applicability of the Supremacy Clause in this context, we have confined our discussion and holding to questions raised under it. * *1228 We are not unmindful of this state's in- terest in maintaining the beauty and recreational at- tractiveness of all of our resources, including the state highways. We recognize that billboards are viewed by many as a blight upon the land. However, this is a case involving significant First Amendment rights. As the court in Baldwin v. Redwood City, supra, stated: *417 "Communication by signs and posters is virtually pure speech. The element of conduct in a Page 12 sign posted on behalf of an issue or candidate during a campaign is minimal. Baldwin and Cannon seek to use posters in political campaigning, and `the con- stitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.' Monitor Patriot Co. v. Roy. 401 U.S. 265, 272, 91 S.Ct. 621, 625.28 L.Ed.2d 35 (1971). Posters and signs are erected adjacent to `traditional first amendment forums, such as public sidewalks and other thoroughfares,' Aiona v. Pai, 516 F.2d 892, 893 (9th Cir. 1975) where `expressive activity may be restricted only for weighty rea- sons.' Grayned v. City of Rockford, 408 U.S. 104, 1 15.92 S.Ct. 1194, 2303, 33 L.Ed.2d 222 (1972). * * * The regulations * * * directly infringe the First Amendment rights of individuals who want to ex- press political opinion in a traditional First Amendment forum." 540 F.2d at 1366. For the reasons stated above, we hold that OAR 733- 20 -050(3)(a) is unconstitutional and therefore invalid. Or.App., 1981. Van v. Travel Information Council 52 Or.App. 399, 628 P.2d 1217, 7 Media L. Rep. 1772 END OF DOCUMENT © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Westlaw, 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) C United States District Court, N.D. California. CITY OF ANTIOCH, a municipal corporation, Plaintiff, v. CANDIDATES' OUTDOOR GRAPHIC SERVICE, a California corporation, et al., Defendants. Cynthia J. FULTON and Candidates' Outdoor Graphic Service, et al., Plaintiffs, v. MEMBERS OF the CITY COUNCIL OF the CITY OF ANTIOCH, et al., Defendants. Nos. C -82- 0731 -WWS, C -82- 0832 -WWS. Oct. 15, 1982. In consolidated actions concerning constitutio- nality of city ordinance limiting to a 60 -day period before an election the posting of political signs which promoted candidates for public office or advocated a position on upcoming ballot propositions, the District Court, Schwarzer, J., held that: (1) municipal ordin- ance which in effect imposed a year -round ban on political sign which was temporarily suspended 60 days before an election and reinstated after the elec- tion has taken place unconstitutionally discriminated in the exercise of First Amendment rights in violation of equal protection clause, and (2) municipal ordin- ance violated First Amendment since ordinance was not the least drastic means of protecting city's go- vernmental interest in aesthetics and concern for vis- ual amenities in the community. Motion for permanent injunction against en- forcement of ordinance granted and all other relief denied. West Headnotes (l Constitutional Law 92 X1016 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Page 1 Questions 92VI(C)3 Presumptions and Construction as to Constitutionality 92k 1006 Particular Issues and Applica- tions 92k1016 k. First Amendment in General. Most Cited Cases (Formerly 92k48(4.1), 92k48(4)) Constitutional Law 92 a 1036 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)4 Burden of Proof 92k1032 Particular Issues and Applica- tions 92k1036 k. First Amendment in General. Most Cited Cases (Formerly 92k48(4.1), 92k48(4)) Constitutional Law 92 X1150 92 Constitutional Law 92X First Amendment in General 92X(A) In General 92k1 150 k. In General. Most Cited Cases (Formerly 92k48(4.1), 92k48(4)) Under standard of reviewing legislative enact- ments which regulate First Amendment rights, the law is presumptively unconstitutional and state bears burden of justification, the law must bear a substantial relation to a weighty governmental interest and cannot be justified merely by showing of some legitimate government interest and the law must be the least drastic means of protecting the governmental interest involved with its restrictions no greater than necessary or essential to protection of the governmental interest. U.S.C.A. Const.Amend. 1. 12j Constitutional Law 92 €—'3635 92 Constitutional Law 92XXVI Equal Protection 92XXVI(E) Particular Issues and Applications © 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works. 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) cal Rights 92XXVI(E)9 Elections, Voting, and Politi- 92k3635 k. In General. Most Cited Cases (Formerly 92k225.2(1)) Municipal ordinance which in effect imposed a year -round ban on political signs which was tempo- rarily suspended 60 days before an election and reinstated after the election has taken place unconsti- tutionally discriminated in the exercise of First Amendment rights in violation of equal protection clause. U.S.C.A. Const.Amends. 1, ]4. J31 Constitutional Law 92 X3476 92 Constitutional Law 92XXVI Equal Protection 92XXVI(E) Particular Issues and Applications 92XXVI(E)1 In General 92k3476 k. Freedom of Speech and Press. Most Cited Cases (Formerly 92k250.5) Laws aimed at controlling noncommunicative aspects of speech must regulate evenhandedly; those which selectively discriminate on basis of content or subject matter offend equal protection clause. U.S.C.A. Const.Amends. 1, 14. Ell Constitutional Law 92 X1710 92 Constitutional Law 92XV III Freedom of Speech, Expression, and Press 92XVIII(F) Politics and Elections 92k1710 k. Signs. Most Cited Cases (Formerly 92k90.1(4)) Municipal ordinance banning the posting of temporary political signs everywhere in the city for all but a 60 -day period before an election violated First Amendment since ordinance was not the least drastic means of protecting city's governmental interest in aesthetics and concern for visual amenities in the community. U.S.C.A. Const.Amend. I . al Municipal Corporations 268 602 268 Municipal Corporations Page 2 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k602 k. Billboards, Signs, and Other Structures or Devices for Advertising Purposes. Most Cited Cases Before a city may impose durational limits or other restrictions on political advertising within its community to advance aesthetic goals, it must show that it is serious and comprehensively addressing aesthetic concerns with respect to its environment. U.S.C.A. Const.Amend. 1. *53 Wayne S. Canterbury, David W. Greenthal, Canterbury, Raub & Greenthal, San Francisco, Cal., for plaintiff Cynthia J. Fulton, defendant & counter- claimant Candidates' Outdoor Service. William R. Galstan, City Atty., City of Antioch, An- tioch, Cal., Dwight B. Bishop, Inc., Walnut Creek, Cal., for plaintiff and counterdefendant City of Anti- och. MEMORANDUM OF OPINION SCHWARZER, District Judge. These consolidated actions bring before the Court the question of the constitutionality of the City of Antioch's ordinance limiting to the 60 day period before an election the posting of political signs that promote candidates for public office or advocate a position on upcoming ballot propositions. The city, which bears the burden of showing that its ordinance comports with the First Amendment, seeks a declaration affirming the constitutionality of Section 9-5 .1 1 15(b)(4)(ii) of its Municipal Code and an injunction requiring defendants Candidates' Out- door Graphics Service (COGS) and Cynthia Fulton''" to obey the local law. By counter *54 motion in a related suit, COGS and Fulton seek a declaratory judgment holding the Antioch ordinance violative of the First and Fourteenth Amendments and a perma- nent injunction against its enforcement. FN1. Although the City of Antioch did not raise the issue, there is a question whether these defendants have standing to challenge the ordinance. As a jurisdictional doctrine determining whether a controversy is justi- ciable, the issue of standing is properly raised © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) by the court sua sponte. Problems of standing to litigate comprise both constitutional limi- tations on the judicial power under Article III of the federal Constitution and self- imposed prudential restraints. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 757 -59, 70 L.Ed.2d 700 (1982). The bedrock requirement for standing in the constitutional sense is a showing that the claimant has suffered cognizable injury; he may not be merely a concerned bystander who presents a generalized grievance about government. Id. at 758 -59. Both defendants in this case meet this showing of injury in fact. COGS prints and posts political signs for candidates in local, State, and national elections. The firm was engaged by a candidate seeking statewide office to poster in preparation for the June 1982 primary. Posting was begun well in advance of the 60 -day period. Although this candidate was defeated in the June primary, COGS, which has a Northern California office in the City of Belmont, is likely to again be hired to perform its ser- vices in Antioch and other Bay Area cities. Taxpayers for Vincent v. Members of City Council. 682 F.2d 847. 849 n. I (9th Cir.1982 ). The fact that COGS is paid to advertise candidates does not impose a barrier to standing, nor does it mean that the speech in question is unprotected or deemed commercial because COGS has an economic interest in its promotion. See Metromedia. Inc. v. San Diego, 453 U.S. 490, 504 n. 11, 101 S.Ct. 2882, 2890 n. 11, 69 L.Ed.2d 800 (1981). Cynthia Fulton, the other defendant in this suit, lives in Antioch and intends to cam- paign by posting political signs in her community. The ordinance has the kind of direct and tangible effect on her legal in- terests which is requisite to her standing to participate in this suit. These suits testing the constitutionality of the Antioch law were brought in the early part of 1982. The city voluntarily agreed to suspend enforcement of Page 3 its ordinance pending a determination by this Court of the ordinance's validity. With the general election of November 2nd now only weeks away, postering will be permitted under the ordinance's 60 day rule until after the election. Although the issue thus appears temporarily mooted, it may properly be considered as raising a case and controversy within the meaning of Article III since it is one of those issues which is "capable of repetition, yet evading review." Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Taxpayers for Vincent v. Members of City Council. 682 F.2d 847, 849 n. 1 (9th Cir.1982). I. The Local Ordinance The Antioch ordinance 1.. z limits the posting of outdoor political signs publicizing *55 ballot propo- sitions or promoting candidates for public office to a period of 60 days prior to the election to which they relate. The term "political sign" is defined as "any sign which is designed to influence the action of the voters for the passage or defeat of a measure appearing on the ballot at any national, State, or local election." Anti- och, California Municipal Code § 9- 5.1115(b)(2) (1979). FN2. Antioch, California Municipal Code § 9- 5.1115(b) (1979) (amended 1981). The portion of the sign ordinance dealing with special restrictions placed on political signs reads as follows: (b) Political signs. (1) Permission to use. Notwithstanding anything to the contrary contained in this article, political signs shall be permitted in the City subject to the terms and conditions set forth in this subsection, which terms and conditions shall apply only to outdoor political signs. (2) Political sign defined. "Political sign" shall mean any sign which is designed to influence the action of the voters for the passage or defeat of a measure appearing on the ballot at any national, State, or local election or which is designed to influence the voters for the election or defeat of a candidate for nomination or election to any public office at any national, State, or local election. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) (3) Registration of responsible parties for signs. Any political campaign committee or candidate who utilizes political signs shall register the name of a person within the political committee or the candidate himself who shall be responsible for the political signs erected on behalf of and by such committee or candidate, their place- ment, and their maintenance within the City, and such person shall be considered the "responsible party." Such responsible party shall complete a registration form provided by the City, giving his name and address and where he can be contacted, and shall agree to become responsible for such political signs. (4) Location, time of erection, and type. Political signs are hereby permitted in any zone without the prior approval of the Commission or Council. However, any such sign shall not: (i) Be permanent or lighted; (ii) Be erected earlier than sixty (60) days before the election to which they relate; (iii) Be attached to any utility pole, fence, tree, or other vegetation or upon any public right -of -way; (iv) Be so situated that the face thereof is specifically oriented for viewing toward any freeway right -of -way; (v) Be erected in such a manner that it will or reasonably may be expected to interfere with, obstruct, confuse, or mislead traffic or be so situated as to endanger the health, safety, or welfare of people or endanger property; (vi) Be erected or place at the intersection of any street, or within the segment created by drawing an imaginary line between points fifty (50') feet back from where the curb lines of the intersection quadrant in- tersect; Page 4 (vii) Signs used in primary elections shall not remain for general election purposes on behalf of a successful primary campaign candidate but shall be removed pursuant to the provision of subsection (5) of this subsection. (viii) Be erected without the permission of the owner of property on which it is lo- cated; (ix) Be placed upon any other sign, unless specifically authorized by the owner or person in possession of such other sign; and (x) Be erected by a political campaign committee or candidate without first hav- ing registered the responsible party. (5) Removal. A political sign shall: (i) Be removed within fourteen (14) days after the election to which it relates; (7) Exemptions. The provisions of this subsection shall not apply to the following: (i) A sign political in nature which is inside a building though visible from the exterior; and (ii) Billboards posted by a person or cor- poration duly licensed to erect and main- tain billboards, provided they are posted in a location in the manner authorized or permitted under other provisions of this article. "Billboard" is defined in paragraph (c) of this article. In effect, the local law imposes a year -round ban on political sign postering which is temporarily sus- pended 60 days before an election and reinstated after the election has taken place. Candidates and advocates have a sixty day window within which to reach An- tioch voters via the medium of the temporary political sign, a medium whose unique advantages have been recognized by other courts. Baldwin v. Redwood City, 540 F.2d 1360. 1368 (9th Cir.1976), cert. denied, 431 © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) U.S. 913, 97 S.Ct. 2173.53 L.Ed.2d 223 (1977); John Donnelly & Sons v. Campbell, 639 F.2d 6. 16 (1st Cir.19801, affd, 453 U.S. 916, 101 S.Ct. 3151. 69 L.Ed.2d 999 ( 1981); Van v. Travel Information Council, 52 Or.App. 399.628 P 2d 1217, 1226 (1981). Only Section 9- 5.1115(b)(4)(ii) of Antioch's Municipal Code is challenged by defendants; the Court is not asked to decide the constitutionality of the entire portion of the Antioch ordinance dealing with political signs. The Court notes in passing, however, that Section 9- 5.1115(b)(4)(v) which purports to pro- hibit the posting of political signs in any manner that may interfere with, obstruct, confuse, or mislead traf- fic, or endanger the health, safety, or welfare of people, raises serious questions of vagueness and overbreadth. II. Standard of Review in First Amendment Cases f 11. The Ninth Circuit has outlined certain general principles which this Court must apply in analyzing legislative enactments, such as Antioch's, which re- gulate First Amendment rights. Taxpayers for Vincent v. Members of City Council, 682 F.2d 847. 849 (9th Cir.1982) (quoting Rosen v. Port of Portland, 641 F.2(1 1243, 1246 (9th Cir.1981)) (citations omitted). First, the law is presumptively unconstitutional and the state bears the burden of justification .... Second, the law must bear a "substantial relation" to a "weighty" governmental interest .... The law cannot be justified merely by the showing of some legitimate governmental interest.... Third, the law must be the least drastic means of protecting the governmental interest involved; its restrictions may be "no greater than necessary or essential to the protection of the governmental interest." The city argues that this rigorous standard of re- view should not be applied to its ordinance because it is merely a "time, place, and manner" restriction which only incidentally burdens those seeking to inform the public about issues and candidates in up- coming elections. It is true that "laws regulating time, place, or manner of speech stand on a different footing from laws prohibiting speech altogether." Linntark Associates, Inc. v. Willingboro. 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977). Such re- strictions are permissible "provided that they are jus- tified without reference to the content of the regulated speech, that they serve a significant governmental Page 5 interest, and that in so doing they leave open ample alternative channels for communication of the infor- mation." Virginia Bd. cf Pharmacy v. Virginia Citi- zens Consumer Council Inc., 425 U.S. 748. 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). The Antioch ordinance is clearly a regulation with respect to time; but it is unlike other regulations tra- ditionally cast as "time, place, and manner" restric- tions. See, e.g., Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (silent vigil would not interfere with tranquility of *56 public library, but noisy protest could be banned); Adderly v. Florida, 385 U.S. 39, 87 S.Ct. 242. 17 L.Ed.2d 149 (1966) (jail grounds not an appropriate forum for civil rights demonstration, but state capitol grounds could not be closed to public protest); Gravned v. Rockford. 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (state could ban noisy protests near school since disruptive of Glasswork); Heffron v. International Society for Krishna Consciousness. Inc., 452 U.S. 640, 101 S.Ct. 2559. 69 L.Ed.2d 298 (1981) (state could confine persons soliciting donations for Krishna religion to one location on state fairgrounds). The 60 day rule, unlike the typical "time, place, and manner" restriction, does not attempt to determine whether and at what times the exercise of First Amendment rights is compatible or incompatible with the normal uses of a particular forum or place. Gravned v. Rockford. 408 U.S. 104. 116. 92 S.Ct. 2294, 2303.33 L.Ed.2d 222 (1972); Taxpayers, supra, at 850. Rather, it imposes a general ban on the posting of signs promoting the candidacy of certain individu- als or advocating a certain viewpoint on an upcoming ballot proposition. This ban is in effect everywhere in the city -on sidewalks, parks, and streets, as well as, apparently, on all private property - throughout the year. The ban is temporarily lifted for only a two -month period prior to an election and is reim- posed in its wake. Such a pervasive restriction, which singles out political signs for special treatment, is properly analyzed under the test outlined in Rosen, supra, and reaffirmed by the Ninth Circuit in the Taxpayers case. © One must begin, therefore, with the proposition that the Antioch ordinance, which explicitly restricts and regulates a form of political speech, is presump- tively unconstitutional. A heavy burden falls on the city to justify its regulation. Its regulatory goal must 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) not only be a "weighty" governmental interest, but the city must show that no less restrictive alternative can be crafted which will promote that interest in a less onerous fashion. With these governing principles in mind, the Court turns to the regulation before it. Two specific challenges are made to the Antioch law. First, the ordinance, by creating a classification based on the content or message of the communication conveyed on signs to be posted in the city, is attacked as vi- olating the Fourteenth Amendment's guarantee of equal protection. Second, the local law is challenged as incompatible with the First Amendment's guarantee of freedom of speech because it imposes restrictions on one important medium which candidates and ad- vocates use to inform the public about elections for political office and about state referenda and initia- tives -the temporary political sign. Each of these issues will be considered in turn. III. Equal Protection J21 The Supreme Court recently gave extensive consideration to the question whether a law which accords disparate treatment to commercial and to noncommercial speech impermissibly discriminates on the basis of content. Metromedia. Inc. v. San Di- ego. 453 U.S. 490, 101 S.Ct. 2882. 69 L.Ed.2d 800 (1981). The Court reviewed an ordinance of the City of San Diego which permitted a business to erect an on -site billboard identifying its goods and services, but prohibited all off -site billboards. The local law contained a number of exceptions to the general ban on off -site billboards, including one exempting "temporary political campaign signs" erected no ear- lier than 90 days before an election. Although the San Diego ordinance spoke of temporary campaign "signs," the California Supreme Court provided a narrowing definition which limited the terms of the ordinance to permanent, fixed structures displaying advertisements, i.e., to billboards. Metromedia, Inc. v. San Diego, 26 Ca1.3d 848, 164 Cal.Rptr. 510, 513 n. 2, 610 P.2d 407 (1 980). The San Diego law was invalidated in a 6 -3 de- cision which generated five separate opinions. A plurality of Justices found that the ordinance imper- missibly discriminated by classifying signs with re- spect to the content of the message conveyed and inverted *57 the First Amendment "by affording a greater degree of protection to commercial than to Page 6 noncommercial speech." Metromedia, Inc. v. San Diego, 453 U.S. 490. 513, 101 S.Ct. 2882, 2895, 69 L.Ed.2d 800 (1981).P-Ls ; The plurality, in remanding the case to the California Supreme Court for a possible limiting and saving construction of the ordinance, explained that the San Diego law could only be saved by limiting its reach to commercial speech; it was fatally defective as applied to political or ideological speech.F=; On remand, the California Supreme Court declined to provide a narrowing construction on grounds that to do so would judicially rewrite the local law. The California Court noted that the political sign exception would be unnecessary in an ordinance li- mited to commercial speech. Metromedia, Inc. v. San Diego, 32 Ca1.3d 180, 185 Cal.Rptr. 260, 265, 649 P.2d 902, 907, (Cal.Sup.Ct., 1982). FN3. Chief Justice Burger, dissenting sepa- rately in Metromedia, argued vigorously against using the equal protection rationale to invalidate the ordinance. He found the law to be "essentially neutral" because San Diego had not attempted to censor or suppress any particular viewpoint or ideological message. ,'Metromedia, supra, 453 U.S. at 561 -69, 101 S.Ct. at 2920 -24. FN4. Two other Justices, concurring in the judgment invalidating the San Diego ordin- ance, would have done so on broader First Amendment grounds. Justices Blackmun and Brennan would have simply reversed the California Supreme Court's decision upholding the ordinance on grounds that the city had failed to justify the substantial re- strictions imposed on First Amendment rights. Metromedia, Inc. v. San Diego, 453 U.S. 490, 521 -40, 101 S.Ct. 2882, 2899 -09, 69 L.Ed.2d 800 (1981). The standard for analyzing equal protection in the First Amendment area was stated by the Court in Police Department v. Moslev, 408 U.S. 92. 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), a case striking down an ordinance which generally banned picketing at a school but created a special exception for labor pick- eting. [Minder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) finds acceptable, but deny use to those wishing to express less favored or controversial views .... Se- lective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. Id. at 96. 92 S.Ct. at 2290. [31 Laws aimed at controlling the non - communicative aspects of speech must regulate evenhandedly; those which selectively discriminate on the basis of content or subject matter offend the Equal Protection Clause. Linmark Associates v. Wil- linxboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (township ordinance prohibiting posting of "For Sale" and "Sold" signs to prevent white flight selectively and impermissibly bans signs based on content); Cary v. Brown. 447 U.S. 455, 100 S.Ct. 2286.65 L.Ed.2d 263 (1980) (differential treatment of labor and nonlabor picketing impermissibly accords preferential treatment to views on one subject); Er;,- rtozn.ik v. Jacksonville, 422 U.S. 205.95 S.Ct. 2268.45 L.Ed.2d 125 (1975) . (law prohibiting drive -ins from showing films with nudity invalidated; government may not selectively shield public from certain kinds of speech that may be more offensive than others); Consolidated Edison v. Public Service Conun'n of New York. 447 U.S. 530. 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (ban on bill inserts discussing controver- sial issues of public policy such as nuclear power not content neutral even though it suppressed both pro and con points of view; invalidated as an impermissible restriction based on message and subject matter). A few cases have approved regulations which differentiate on the basis of subject matter. In Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714. 41 L.Ed.2d 770 (1974), the Court upheld an ordinance banishing political signs from city -owned buses. And in Greer v. S'pock. 424 U.S. 828, 96 S.Ct. 1211. 47 L.Ed.2d 505 (1976), a regulation prohibiting partisan political speeches on a federal military base was sus- tained. The Metromedia plurality distinguished these cases as turning on "unique fact situations involving government- created fo *58 rums...." .Metromedia, Inc. v. San Diego, 453 U.S. 490.514 n. 19, 101 S.Ct. 2882, 2896 n. 19, 69 L.Ed.2d 800 (1981). Chief Justice Burger, dissenting in Metromedia found the Lehman principle, permitting a city to exclude all political advertisers, to be applicable to the San Diego ordin- ance, so long as no particular point of view or issue of Page 7 public debate is censored. Metromedia, supra. 453 U.S. at 568 n. 8, 101 S.Ct. at 2889 n. 8. The Antioch political sign ordinance is content neutral in the sense that it does not discriminate among political messages. But it imposes severely restrictive time limits on the posting of political signs- limits not imposed, for example, on temporary signs advertising upcoming commercial, charitable, or civic events. By singling out political signs for restrictive treatment, the Antioch ordinance clearly conflicts with the Me- tromedia plurality and the Mosley line of cases. Commercial speech, although subject to other limita- tions in the city's municipal sign ordinance, is merely regulated in Antioch; political speech is outlawed except during the sixty day period before an election. FNS. See also Aiona v. Pai, 516 F.2d 892 (9th Cir.1975) (Hawaii statute banning movable political signs but not commercial signs from sidewalks violates equal protec- tion); Orazio v. Town of North Hempstead. 426 F.Supp. 1144 (E.D.N.Y.1977) (ordin- ance limiting posting of political wall signs to six weeks before election impermissibly discriminates on the basis of political con- tent); John Donnell), & Sons v. Campbell, 639 F.2d 6 (1st Cir.1980), affd, 453 U.S. 916, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981) (state law banning billboards with limited exceptions imposed greater restrictions on ideological than commercial speech). The Antioch ordinance, by imposing specially restrictive treatment to political signs, unconstitu- tionally discriminates in the exercise of First Amendment rights in the setting where they have their "most urgent application ... the conduct of campaigns for political office." Monitor Patriot Co. v. Ror, 401 U.S. 265. 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971). IV. First Amendment 141 Apart from its shortcomings under the equal protection principle of the plurality in Metromedia, the Antioch ordinance must fail because the city has not sustained its heavy burden of justification under the First Amendment. The city has not shown that its ordinance is the least drastic means of protecting its governmental interest under the test announced by the Ninth Circuit in Rosen, supra. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) Each medium of communication offers special advantages to those seeking to convey a message and presents special regulatory problems to local gov- ernments seeking to mitigate the negative spillover effects that the medium may have on the rest of the community. Courts have stressed the uniqueness of each medium of expression in striving to find the proper accommodation of First Amendment values and other societal interests. "The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses, and dangers. Each, in my view, is a law unto itself...." Kovacs v. Cooper, 336 U.S. 77, 97. 69 S.Ct. 448, 458. 93 L.Ed. 513 (1949) (Jackson, J.) We deal in this case with the temporary political sign, a medium with its own special virtues and vices. The question whether durational limits on the posting of temporary political signs unnecessarily restrict the exercise of First Amendment rights has not been decided by this Circuit or by the U.S. Supreme Court. The Metromedia case did not directly decide whether it is constitutional to place time limits on political advertisement using temporary signs. The majority of Justices rejected the restrictions imposed by the ordinance at issue there on political and ideo- logical speech. But the San Diego ordinance regulated billboards. L` Permanent, fixed structures like bill- boards are a medium *59 different from small, de- tachable political signs and present different regula- tory problems. The Court of Appeals twice made passing reference to such time limits in other cases dealing with local sign ordinances, apparently consi- dering them unobjectionable in the context of these cases. See Baldwin '. Redwood City. 540 F.2d 1360, 1370 (9th Cir. I976); Verrilli v. City of Concord, 548 F.2d 262, 265 (9th Cir.19771. But it has not had oc- casion to consider fully the countervailing policy arguments and conflicting interests which must be weighed in determining whether a 60 day rule represents a fair and reasonable accommodation of the city's interest in protecting its aesthetic appearance and the public's interest in full and vigorous debate of political issues. " -1 FN6. The Antioch ordinance specifically exempts billboards from its political sign regulations. Antioch, California Municipal Code § 9- 5.1115(b)(7)(ii) (1979) (amended Page 8 1981). And only outdoor political signs are subject to the 60 day rule. Antioch, Califor- nia Municipal Code § 9- 5.1115(b)(7)(i) (1979) (amended 1981). FN7. In its recent decision in Taxpayers, supra, the Ninth Circuit invalidated, on First Amendment grounds, an ordinance of the City of Los Angeles prohibiting the posting of signs on sidewalks, curbs, posts, telephone poles and other public objects. Contra, Sussli v. City of San Mateo. 120 Cal.App.3d 1, 173 Cal.Rptr. 781 (1981). Antioch enacted the 60 day rule in order to keep the community's streets, sidewalks, parks, and busi- ness and residential districts attractive, clean, and visually uncluttered. The governmental interest ad- vanced is aesthetics and concern for visual amenities in the community. The legitimacy of this govern- mental objective is not disputed. See Ta.payers for Vincent v. Members of City Council, 682 F.2d 847. 851 -52 (9th Cir. J 982); Baldwin v. Redwood City, 540 F.2d 1360, 1370(9th Cir.1976). But this particular ordinance, banning the posting of temporary political signs everywhere in the city for all but a 60 day period before an election, is not the sort of narrowly drawn, sufficiently detailed restric- tion which can pass constitutional muster. It does not adequately accommodate its aesthetic and environ- mental goals to the public's right to be informed about upcoming elections. The temporary political sign offers special ad- vantages to the candidate seeking public office and to the advocate promoting a particular position on a state ballot measure. These signs are a relatively inexpen- sive means of campaigning. Their use can be localized so that certain areas which the advocate wishes espe- cially to reach may be targeted. A candidate or parti- san can use the temporary sign to place a name or an issue before the public. In a campaign for political office, political posters can be effectively utilized to build up the candidate's name recognition and to es- tablish him as a serious contender. The temporary political sign has special value to the non - incumbent or relatively unknown candidate who can use the signs to identify his name among the electorate. The less well -known candidate can test the waters to see whether his candidacy is viable before going to more © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) expensive media such as television or radio. As the Ninth Circuit noted in Baldwin v. Redwood City, 540 F.2d 1360, 1368 (9th Cir.1976), in striking down an ordinance which, among other things, limited the aggregate area of temporary signs allowed on a parcel of land and banned them from residential areas altogether: [Weans of political communication are not entirely fungible; political posters have unique advantages. Their use may be localized to a degree that radio and newspaper advertising may not. With the exception of handbills, they are the least expensive means by which a candidate may achieve name recognition among the voters in a local election. Although the Antioch ordinance does not bar all campaigning outside the sixty day period, it does severely restrict the use of one important vehicle for political advertisement, the temporary sign. The al- ternative means for informing the voters in Anti- och- newspapers, radio, television, and door -to -door solicitation -may not be satisfactory substitutes as they may be more costly E S and perhaps less effective if not preceded by a vigorous sign campaign. See *60 Linmark Associates. Inc. v. Willingboro. 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977); Baldwin v. Redwood City, supra, at 1368. FN8. In the Joint Statement of Facts, all par- ties to the suit stipulated to the following: "Political signs can constitute an important element in many political campaigns in Cal- ifornia and offer a relatively effective and inexpensive means by which little -known candidates can achieve name recognition among the electorate." Other courts have found ordinances which im- pose time limits on the posting of temporary political signs to be unconstitutional. A state appellate court in Oregon struck down a statute limiting the right to erect temporary political signs on land bordering state highways to 60 days before an election. Van v. Travel Information Council, 52 Or.App. 399, 628 P.2d 1217 (1981). While recognizing the legitimacy of the state's interest in the beauty of its highways, the Oregon court found that this interest did not sufficiently justify the restrictions imposed on political speech. The court stated: Page 9 The process of acquainting the public with new candidates is a slow one. Two months is simply not enough time to allow a relatively unknown person to achieve household familiarity. Id. at 413.628 P.2d at 1226. A district court in New York, considering a sim- ilar ordinance which limited the posting of "political wall signs" to six weeks prior to an election, invali- dated the rule on equal protection grounds. Orazio v. Town of North Hempstead, 426 F.Supp. 1144 (E.D.N.Y.1977). Addressing the inherent public pol- icy problems associated with the imposition of time limits on political advertisement, the Orazio court noted: Defendants ... assert that time restrictions on polit- ical wall signs are necessitated by the fact that pol- itics is a temporary business. Whether temporary or not, politics is an important business and it is dif- ficult to see what governmental interest is served by placing time limits on the public's opportunity to be informed about political candidates who are seeking public office or organizations which support them. Id. at 1149. 15i These precedents are persuasive. The city has failed to show that its legitimate interest in maintain- ing a clean, litter -free, visually attractive community justifies placing time limits on the posting of political signs but not on temporary signs that convey com- mercial messages or ideological messages unrelated to an upcoming election. Nor has the city shown that this particular time period of sixty days, even if evenhan- dedly applied to all temporary signs, reasonably and adequately provides for the exercise of First Amendment rights. Before the city may impose dura- tional limits or other restrictions on political adver- tising within its community to advance aesthetic goals, it must show that it is "serious and comprehensively addressing aesthetic concerns with respect to its en- vironment." Taxpayers for Vincent v. Members of City Council, 682 F.2d 847, 852 (9th Cir.1982) (quoting Metromedia, Inc. v. City of San Diego. 453 U.S. 490, 530 -31. 101 S.Ct. 2882, 2904.69 L.Ed.2d 800 (1981). V. Less Drastic Alternatives © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 557 F.Supp. 52 (Cite as: 557 F.Supp. 52) Page 10 This Court is sensitive to the need for judicial re- straint in intruding on the exercise of the police power by local governments to regulate land uses in the interest of public safety, health, morality, peace and quiet, and the general welfare. Temporary political signs, while possessing unique advantages as a means for informing voters about candidates and public is- sues, may also pose special problems to a city in its attempts to maintain aesthetic standards. Because of their eye- catching colors and the profusion in which they are sometimes posted, political signs may convey their message in a strident or discordant fashion. See Ross v. Goslii, 351 F.Supp. 949. 953 -54 n. 13 (D.Hawaii 1972). If completely uncontrolled, they could subject the community to visual blight and pollution. However not all efforts to regulate temporary signs will necessarily be invalid. In its recent opinion in Taxpayers, supra, the *61 Ninth Circuit has pointed the way toward less restrictive alternatives available to city government: Instead of a general ban, the City might regulate the size, design, and construction of the posters ... institute clean up or removal requirements, ... or provide more stringent regulations for the areas of the City more in need of protection. Moreover, the City might specifically prohibit the erection of signs that obscure hydrants, traffic signs, and signals, or that block motorists' line of sight. We also think it clear that the City might prohibit the posting of signs on trees or shrubs. Id. at 852 -53 (citations omitted). VI. Conclusion For the reasons stated the City of Antioch's 60 day time limit on the posting of political signs is uncons- titutional. The motion for a permanent injunction against enforcement of the ordinance is granted. All other relief is denied. The parties will bear their own costs. IT IS SO ORDERED. D.C.Cal.,1982. City of Antioch v. Candidates' Outdoor Graphic Ser- vice 557 F.Supp. 52 END OF DOCUMENT © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.