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Robert L. McTiernan

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Co-chair, Labor & Employment Group

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FEDERAL COURT OF APPEALS RULES PENNSYLVANIA BOROUGH’S ORDINANCE REGULATING POLITICAL YARD SIGNS IS UNCONSTITUTIONAL

Robert L. McTiernan, Esq., rmctiernan@tuckerlaw.com, (412) 594-5528

In Camp Hill Borough Republican Ass’n v. Borough of Camp Hill, 2024 U.S. App LEXIS 11300 (3rd Cir., May 9, 2024), a three-judge panel of the United States Court of Appeals for the Third Circuit declared portions of Camp Hill Borough’s sign ordinance unconstitutional. Two individual residents of the Borough who were named plaintiffs in the case displayed numerous lawn signs supporting various political candidates. One resident erected two signs approximately 100 days before the election. Some weeks later, another resident erected three signs. Political lawn signs were classified under the ordinance as “Temporary Signs” as well as “Personal Expression Signs” that “express an opinion, interest, position, or other noncommercial message.”

The Borough’s code enforcement officer directed the two residents to remove their signs because the ordinance limited Personal Expressions Signs, including political lawn signs, to two in number and prohibited them from being displayed more than 60 days before the election.

The Court of Appeals unanimously affirmed the trial court’s decision granting summary judgment in favor of the plaintiffs on the grounds that the ordinance restricted political signs based on their content and, therefore, was presumptively invalid under the First Amendment of the United States Constitution. The Court of Appeals explained that the restrictions on political lawn signs were not simply restrictions of “time, place, and manner,” because the number of signs and the timing of their display were specifically dependent on the content of the sign, which distinguished them from signs erected for commercial purposes. The Court of Appeals noted further that in categorizing political signs as “Personal Expression” signs the Borough was treating non-commercial, political speech less favorably than commercial signs, which were allowed to be larger and displayed more frequently and over longer periods under the ordinance. The Court of Appeals concluded the ordinance failed the “strict scrutiny” test because it was not ”narrowly tailored” to promote a “compelling interest.”

Because this is a ruling of the Court of Appeals for the Third Circuit, the decision is binding on all municipalities in the Commonwealth of Pennsylvania. It is also a compelling reminder that municipalities must proceed with caution in regulating political signs at a time when such expressions are increasingly explicit and frequently displayed long before and long after elections. Challenges to the constitutionality of sign ordinances are usually brought in the United States District Court under 42 U.S.C. § 1983, and, if successful, the parties filing suit are virtually guaranteed reimbursement of their attorneys’ fees. These costs can be substantial and are not generally covered by insurance.

Contact Bob McTiernan at (412) 594-5528 or at rmctiernan@tuckerlaw.com to discuss how this ruling may impact your municipality’s sign ordinance and to ensure compliance with First Amendment rights. 

May 15, 2024

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