Q: Our organization is the primary voice working in opposition against a state plan that we believe will have terrible environmental and economic consequences. Our members throughout the region display our signs, but Caltrans removed the signs from private property citing Business and and Professions Code 5405.3.
The CalTrans Supervisor said to us and several supporters that if people do not move the signs 660 feet from the public right of way that they can be fined $10,000. The signs are not advertisements; they are not political advertisements and the roads in question are not Freeways that are landscaped. Interesting enough, those who are on the opposite side of the argument display signs up and down, state highways and and I-5 in the Central Valley, but Caltrans does not enforce the law regarding the placement of their signs. Do we have a free speech case here?
A: California’s laws regulating outdoor advertising are fairly complicated. It appears that Section 5405 of the Business and Professions Code limits the types of advertising displays, including signs, that can be placed within 660 feet from the edge of the right-of-way of and are visible from an interstate or ‘primary highway’ to certain categories that might not apply to the signs you describe. (Based on the language contained in the Outdoor Advertising Act, it appears that advertisement is construed quite broadly and would likely encompass the kind of signs you describe.)
The Act contains an exception for temporary political signs, but such signs must pertain to a scheduled election, be placed no more than 90 days before the election, and be removed within 10 days after the election. Bus & Prof Code § 5405.3.
In addition, a statement of responsibility must be filed with the department of transportation certifying who will be responsible for removing the sign. Id.
Although these laws impact speech and the highly protected category of political speech it seems likely that a court would find that the government interest in regulating the highways for safety and aesthetic reasons would be sufficient to justify any incidental impingement on speech, particularly given the exception made for temporary political signs.
Even laws that are facially neutral can be applied discriminately, however, and can therefore be impermissible. To the extent that these laws are enforced only against those who convey a particular politically disfavored message, however, and not against those who convey a politically favored message on the same issue, it may theoretically be possible to establish that the application of the laws is unconstitutional. Practically speaking, it would probably require a significant amount of compelling evidence to establish such a violation.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.