Halloween Ghouls, Zombie Nativities, Toilets with Antlers, and other Offensive Holiday Displays: Zoning Law, the First Amendment and the Right to be Offensive

It’s that time of year again. Seasonal holiday displays are beginning to dot our subdivisions and public spaces. Although most will conform to mainstream cultural, religious and societal norms, the ones that don’t create discomfort or even outrage, spurring calls for government authorities to order them to be removed.  When governments do not act, it is not unheard of for citizens to take on the task themselves by removing or destroying the offensive display, risking criminal charges or even arrest in doing so.

There are two broad categories of offensive displays, those on private property and those placed by governments on public property; each has differing legal considerations. Property owners have a broad first amendment right to free expression of their views, and governments are limited in their power to have seasonal displays removed due to their offensive content, no matter how controversial or upsetting to neighbors. Thus begets a resident who decorated his house on a busy street just down from an elementary school with a Halloween display that included the typical spiders and ghosts but also a gas mask wearing nun holding a crucifix, a skeleton, and scenes of graphic violence. Neighbors asked local law enforcement officers to shut it down, but they correctly determined that offensive as it was it did not violate local laws. The display was permitted to remain.

20151010_224354Officials unsuccessfully tried to order a home owner, a plumber, to remove ten toilets from his roof that he festooned with seasonal decorations such as reindeer antlers at Christmas, cupids on Valentine’s Day and leprechauns on St. Patrick’s Day.  A horror movie fan who placed a nativity scene in front of his home that included zombie representations for Mary, Joseph and the wise men as well as a little zombie Jesus was ordered to remove the display on the basis that the structure was an illegal accessory structure, despite the fact that such action was not taken for more traditional nativity scenes.

A home owner who erected a large, arrow pierced, heart shaped sign illuminated with pink lights for  Valentine’s Day was cited for illegally having holiday lights and decorations except from mid-November to mid-January. Not only did this raise Equal Protection issues for followers of religions that celebrate holidays that fall outside the allowable dates, but it also burdens the home owners’ protected right to express themselves on their own property free from governmental interference.

Seasonal displays that contain religious elements that are placed on public property must  allow the incorporation of symbols or themes of other religions. Otherwise such displays would unconstitutionally advance one religion over another. Traditional seasonal displays that contain Judeo Christian religious themes such as nativity scenes or menorahs must offer room for displays of less conventional religious beliefs.  Under recent Supreme Court rulings, governments are limited in their power to determine the sincerity of the proponents’ religious beliefs. Thus, around the country holiday displays of creches and menorahs have to make room, if requested, for displays by groups such as the Satanic Temple, the American Humanist Association, atheist groups, and Pastafarians (who profess to venerate the flying spaghetti monster).  Outraged citizens in several cases, such as a women in Florida wearing a “take a stand against Satan” t shirt destroyed a Satanic Temple display on the Florida state capitol grounds that depicted an angel flying in to the flames of Hell.  The display was restored and the woman was arrested. The spokesperson for the Christian group who arranged the traditional nativity scene on the capitol grounds stated that as much as she did not like the Satanic Temple display, it is a matter of free speech and should not be vandalized.

Over time it will be interesting to see how non-traditional seasonal displays, particularly on public property, are treated. Either many new and original manifestations of religious expression will be permitted to join the majority Judeo-Christian displays, or governments and the public will simply decide to prohibit all such displays.

CWestoverChristine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

The Newest Sign for Some Sign Ordinances: Stop

Sign ordinances and regulations are a fixture of city and county zoning and land use regulations, designed to prevent unattractive clutter from obstructing the public view. In creating these regulations, however, local governments run the risk of infringing some of the most basic constitutional rights. Signs inherently include a component of speech, and regulation of the former may unintentionally interfere with the latter. The town of Gilbert, Arizona, learned this lesson the hard way in the recent U.S. Supreme Court decision of Reed v. Town of Gilbert.

a photo image of a business man's hand with a stop sign ** Note: Slight graininess, best at smaller sizes

Gilbert enacted a comprehensive sign code that governed the display of virtually all varieties of outdoor signs. This code divided the signs into several categories, such as “Temporary Directional Signs Relating to a Qualifying Event,” “Ideological Signs,” and “Political Signs.” A local community church lacked a permanent meeting space, so they would post signs on Saturday morning and remove them around noon on Sundays to direct the public to the location of their services for any given week. The town’s Sign Code compliance manager cited the church twice for exceeding the time limits (twelve hours) for displaying temporary directional signs. The church tried to ask the city for an accommodation, but was unsuccessful. The church was told that there would be no leniency under the code.

The Supreme Court, in a unanimous decision, held that the Gilbert’s sign ordinance was an impermissible content-based regulation of speech and did not survive strict scrutiny review. The court said that, “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”[1] The sign ordinance in effect in Gilbert literally created distinctions among signs based almost entirely of the content of the signs, creating separate rules for different classes of content. Any restrictions on signs depended entirely on the communicative content of the signs themselves, a step the court said went too far. It made no difference to the court that the sign code itself did not discriminate among viewpoints or that there was no evidence of differential treatment between differing viewpoints or discriminatory application of the code. The sign code in Gilbert made content distinctions on its face, and was therefore a violation of the First Amendment.

The actual impact of Reed is subject to substantial debate, even among the Supreme Court Justices themselves. While all the Justices agreed that Gilbert’s regulations went too far, the appropriate standard or review was a hotly debated topic. Justice Alito believes that the Court’s application of strict scrutiny review “will not prevent cities from regulating signs in a way that fully protects public safety and… legitimate esthetic objectives,”[2] but Justice Kagan theorizes that because of the harsh standard applied, the Supreme Court “may soon find itself a veritable Supreme Board of Sign Review.”[3]

What is clear from Reed is that any government entity with a sign code, ordinance, regulation or the like should study its outcome very carefully. Distinctions based upon the communicative content of the sign are now clearly impermissible after this case, and local governments would be well advised to review their sign regulations with a fine-toothed comb. The attorneys at McBrayer can assist with that process, keeping all land use ordinances, even sign regulations, compliant with changing areas of the law.

Jacob C. WalbournJacob C. Walbourn is an associate in McBrayer’s Lexington office. Mr. Walbourn focuses his area of practice on planning and zoning law handling a wide variety of land use matters for clients in the private sector. His responsibilities include attending Planning Commission and Board of Adjustment hearings and working with developers, business owners, and government agencies on land use applications, zoning ordinance text amendments, comprehensive plan updates and other land use issues. He can be reached at jwalbourn@mmlk.com or (859) 231-8780, ext. 102.

[1] Reed v. Town of Gilbert, 576 U.S.___(2015) at 6.

[2] Id. at 2 (Alito, J. concurring).

[3] Id. at 6 (Kagan, J. concurring).