The city of Windsor Heights insists officials did not violate the First Amendment when attempting to restrict displays of signs opposing construction of new sidewalks and other local government policies. In a letter to the American Civil Liberties Union of Iowa, which is representing affected homeowners, attorneys for the city revised the legal grounds for previous actions and asserted that Windsor Heights is enforcing content-neutral sign regulations.

Sidewalks may seem an unlikely trigger for passionate political disputes, but such is life in this small suburb to the west of Des Moines. As Bleeding Heartland discussed here, Windsor Heights began installing sidewalks this summer on a street where most residents don’t want them. Marijetka and James Orr responded with this banner:

One day in July, when the Orrs were out of town, the city sent them a letter declaring the supposedly “unsafe sign” a nuisance. Later the same day, someone from the city came to the property to remove the banner. Neighbors up the street, Mike Miller and Diane Foss, then repurposed a local candidate’s yard sign to express their disapproval:

Miller and Foss soon received a notice from the city warning that they would be fined if they didn’t remove their sign, also (ludicrously) deemed a “nuisance,” within 24 hours.

The homeowners turned to the ACLU of Iowa, which issued a demand letter a week before the city council was to consider an appeal of the notices. But on August 18, the city took that item off the agenda for the council’s August 21 meeting.

This week, city attorney Matthew Brick wrote back to the ACLU. The letter in full:

The letter maintains the “applicable provisions of the City’s sign ordinance are content neutral and fall neatly within the contours of First Amendment jurisprudence […].”

After I published this post, some readers speculated that city officials might not have consulted with attorneys before taking down the Orrs’ banner and sending the warning letter to Miller and Foss. Neither the city administrator nor Brick has responded to my requests for comment, but the hypothesis seems plausible, because the city now justifies its position differently. From page 2:

That said, the notices sent to your clients were pulled from the City’s form database and made reference to incorrect code provisions. We recognize that these notices may appear to have been based on the content of the messages, but that is simply not the case. These notices were issued for two reasons only: 1) because the property owners have neither applied for nor obtained a permit for the installation of such signs as required by City Code 175.08, and 2) they exceed the maximum permissible area for signs in the zoning district within which your clients’ properties are located. City Code 175.03; City Code 175, Table 3.

As I’m sure you recognize, it is fully permissible for a city to enact permit requirements and establish size restrictions for signs placed within its city limits.

Section 175.4 of the City Code allows “residential signs under 2 square feet in size.” Some political yard signs are a bit larger than that, but since moving back to Windsor Heights fifteen years ago, I’ve never heard of anyone applying for a permit to display this kind of sign. Nor have I heard of the city threatening to fine a homeowner over a yard sign. As a volunteer, I have distributed many political yard signs to neighbors and put signs for various candidates on our property.

In order to “clarify that the notices were issued due to these content neutral provisions,” Windsor Heights sent the ACLU “Superseding Notices of Violation” which refer only to the sign provisions in Chapter 175, not the nuisance provisions originally cited. Under Chapter 175, “there is no right to a hearing before the City Council under this enforcement scheme.” Rather, homeowners could appeal to the city’s Board of Adjustment. But Brick lowered the stakes considerably:

While the City is issuing Superseding Notices of Violation to correct the Code references and the basis for the alleged violations, the City does not intend to take any additional enforcement action against your clients on either the original or Superseding Notices of Violation. We simply wish to correct the prior Notices and give your clients an opportunity to be heard on the matter should they so desire.

We hope this letter along with the Superseding Notices satisfy the concerns noted in your correspondence. The City recognizes the importance of free speech rights and does not wish to interfere with those rights. In fact, the City invites your clients to repost the identical message contained on their respective signs, provided that the sign complies with any applicable sign restrictions set forth in Chapter 175 of the City Code and a permit is obtained therefor should one be required.

Asked to comment on the city’s response, ACLU of Iowa legal director Rita Bettis said, “We are currently reviewing the letter and consulting with our clients.”

As mentioned above, “CITY HALL RUN AMOK” was the same size and shape as many signs advocating for candidates or expressing other political messages, such as support for law enforcement or public educators. I’ve never heard of the permit procedure outlined in City Code 175.08 being required for such a sign.

I asked Jessica Vogel, the Windsor Heights communications staffer, whether the city has taken action against other residents who have put up anti-sidewalks messages or other criticism of city policy in recent weeks. I also asked why officials enforced code on one sign with the same dimensions as yard signs displayed without incident every year. Vogel responded via e-mail on August 22, “City staff issued notices based on citizen complaints about signs but the violations have nothing to do with the content of the signs.” She referred further questions to Brick, who didn’t return my call.

The ACLU’s letter to the city cited court rulings that have found a “heckler’s veto” for political speech is inconsistent with the First Amendment. The Windsor Heights “complaint-based” system for investigating alleged code violations is tantamount to giving those who dislike a neighbor’s views an avenue for suppressing speech under the guise of a sign ordinance.

When I sought out other residents whose yards contain hand-made anti-sidewalks signs, most were not home, but Cynthia McCall told me she hasn’t received any notice declaring “MORE GRASS LESS CONCRETE! VOTE THEM OUT IN NOVEMBER!” to be in violation of City Code. She added that her sign is significantly larger in surface area than “CITY HALL RUN AMOK.” She wasn’t aware of anyone else on her street being told to take down their signs or apply for a permit.

Thanks to a shifting legal strategy, Windsor Heights City Council members will be able to dodge a public discussion and vote on this embarrassing episode. But instead of hiding behind a lawyer’s attempt to clean up the mess, they should seize this opportunity to declare that they won’t tolerate selective enforcement of a sign ordinance based on complaints by those who disagree with a political statement.

UPDATE: The Des Moines Register published a letter to the editor by Windsor Heights resident Mike Draper, a strong supporter of new sidewalks. Excerpts:

The claim that the city has violated free speech has not been legally proven. It’s based on a letter from the ACLU, based on a resident’s complaint about the city’s sign ordinance.

The issue: Does a city have a right to regulate the size of signs, even political?

Windsor Heights has dozens of small “No Sidewalk” signs. They have adorned yards for more than 400 days. The city has held over 10 public meetings where people could come and comment on the issue of sidewalks.

Then the city removed one large banner about sidewalks. Is that a fundamental violation of free speech? I don’t think so.

Iowa regulates the size of billboards along I-80. Will visitors “steer clear” of Iowa because of these free speech violations that are, apparently, so flagrantly obvious to the Register editorial staff?

Draper is wrong on several counts. The process by which city officials removed the banner was absurd, but that wasn’t the only problem. City officials are not uniformly enforcing the sign ordinance. Hundreds of people have never been bothered about their political yard signs, even though some are larger than the ordinance allows. Yet city officials threatened a huge fine against two property owners over “CITY HALL RUN AMOK,” which was no larger than numerous other signs.

The state’s billboard size regulations along I-80 are content-neutral. So Draper’s analogy would make sense only if evidence emerged that state officials had cracked down on one politically controversial billboard, but not others of similar size and shape.

Windsor Heights city staff cannot recall any other example of city officials approaching a property owner asking them to take down a political yard sign, I was told in response to one of my inquiries.

LATE UPDATE: The city backed down, the ACLU of Iowa announced in a September 15 press release.

Windsor Heights Agrees to Revise Sign Ordinance And Train Staff After ACLU Takes Action on Behalf of Residents

Windsor Heights, Iowa — The City of Windsor Heights has agreed to amend its contentious sign regulation ordinance that resulted in one local couple being threatened with fines of up to $1,000 a day and another family having their sign torn down by the city. Both had posted signs critical of city government.

The American Civil Liberties Union of Iowa’s clients—couples Diane Foss and Mike Miller and Marijetka and Jamie Orr, both of Windsor Heights—have reached resolution in their challenge to the City of Windsor Heights’ actions to enforce the City’s sign ordinance.

The resolution consists of:

1) The city has agreed to rescind not only the original notices of violation, but also “superseding” notices of violation that it initially sent out to replace them.

2) The city will work to amend its sign regulation ordinance to comply with an important free speech 2015 U.S. Supreme Court case, Reed v. Town of Gilbert, which requires that regulations of signs be reasonable, and content neutral to survive First Amendment scrutiny.

The ACLU of Iowa will assist the City of Windsor Heights in drafting language that complies with the Constitution. Given the required notices and meeting schedules, we anticipate an adoption date no later than January 30, 2018.

3) The city has agreed to conduct training of its staff regarding how to protect residents’ constitutional due process and privacy protections when it enforces the city’s nuisance abatement procedures in the future.
Homeowner Jamie Orr said that he and his wife, Marijetka, “are just happy to have a resolution to this situation that we never dreamed would stir up as much controversy as it did.”
Homeowners Mike and Diane Foss in a statement said, “Our original intent in putting up our sign was to protest the city’s heavy-handed behavior, both in regard to the sidewalk debacle, and in violating our neighbor’s rights when the City forcibly confiscated their sign.”

“Ironically, the city proved the truth of our sign, ‘City Hall Run Amok,’ when they threatened to fine us $1,000 per day, while ignoring all other signs in the City which were as large or larger than ours,” the couple said. “We’d like to thank the ACLU for standing up for our rights, and helping to safeguard those rights for others in the future.”

If resolution wasn’t reached, the ACLU was prepared to file a lawsuit. Rita Bettis, ACLU of Iowa legal director said, “Given the importance of the issue to the ways ordinary Iowans express their core political speech, the potential to use the case as a way to educate cities across the state about the First Amendment, and the relative recency of the Supreme Court case, the ACLU was prepared to litigate the case if necessary.”

“This is an excellent outcome for everyone. Our clients did something important, and not easy, to stand up to local government overreach to protect their own and others’ speech rights and due process rights. It’s been an honor for us to work with them on this. We commend the City for working with us to resolve this matter in a manner that shows a sincere interest in protecting the free speech rights of its residents,” Bettis said. “Our hope is that other municipalities in Iowa will examine their sign ordinances in light of the Reed case and make necessary changes to ensure that they are acting to protect the constitutional free speech rights of their residents as well.”