SLO County has enforced this political sign law since 1980 — but it's likely unconstitutional

Since 1980, San Luis Obispo County has regulated how people display political campaign signs on their property in unincorporated areas: They can be no more than 4 square feet in residential areas, they can go up within 60 days of the election, and they must come down within 14 days after.

Those rules are written in county code and summarized in manuals handed out to political candidates. For decades, they've been enforced.

Until now.

The county isn't enforcing those rules this year, because it turns out, they're likely an unconstitutional violation of the First Amendment that prohibits laws "abridging the freedom of speech."

Effectively, that means you could put up as large a sign as long as you want, assuming it didn't present any public safety problems.

The issue was clarified in a 2015 U.S. Supreme Court opinion written by Justice Clarence Thomas in the case of Reed v. Town of Gilbert, in which a church in Arizona challenged town rules that were similar to those in San Luis Obispo County.

Basically, justices decided that municipalities may almost never restrict signs based on their content. The opinion says: "Content-based laws — those that target speech based on its communicative content — are presumptively unconstitutional" save for a few exceptions.

As chief investigator for county code enforcement Art Trinidade put it: "The law of the land is that if (the code requires) you have to look at the sign to determine the nature of the sign, than it's a First Amendment violation."

It's freedom of speech

Cities and counties throughout the country are impacted by the court's decision.

Some have changed their rules, while others just haven't gotten to it yet. Some, like the city of San Luis Obispo, explore the issue in white papers. Both the city and the county of San Luis Obispo are enforcing parts of their rules, those that are in compliance with the Supreme Court ruling.

In San Luis Obispo County, the ordinance is still on the books and a summary is included in a campaign manual given to candidates for the June 5 primary election, even the rules it won't enforce.

"We had it in our hopper of things to do for awhile. We've been working on it," Trinidade said.

Changing the sign ordinance became a priority for the county after the court decision came out, County Counsel Rita Neal said. That continued to be a priority until October, when it was put "on hold," though it's unclear why.

For now, the county is only enforcing sections of the ordinance that are in compliance with current law. That seems to mean they're not enforcing rules about timing and size.

"We're not enforcing the ordinance the way it's written. We are enforcing a portion of the ordinance," Trinidade said.

At least some candidate campaigns, however, were not told that and have dutifully waited until April 6 to issue out their size-compliant signs to supporters.

District 4 Supervisor Lynn Compton's campaign consultant, Justin Salters, said they've had yard signs sitting in the office for more than a week and they ordered signs based on the candidate handbook they received.

The campaign manager for Compton's challenger, Jimmy Paulding, is Nick Andre. Andre said they waited until midnight April 6 to put up signs based on the rules. Even if the county doesn't enforce them, "I think we should respect the rules," Andre said.

What can be regulated

There are rules the county will enforce. If political signs are found on any of the following four places, code enforcement will pick them up and return them to campaign headquarters.

They can't be on:

• Road rights-of-way
• Public property
• Utility poles
• Traffic control devices

So, does this mean someone can put up a 30-foot sign in their front yard?

Kind of, yeah.

The way the county ordinance is written, the size limits are specific to political signs (so, the rules are content-specific and therefore unconstitutional).

"We will not enforce based on content of the sign. As for the size of signs, if the sign creates a public safety hazard, then we will address it from that perspective. As with most enforcement matters, we attempt to gain compliance first and we would do the same in this situation," Neal said.

Trinidade offered the example that if a 32-square-foot sign blocks the sight lines of two busy streets, "we don't have to look at the content of the sign" to take it down. Similarly, if large signs in high winds start cutting through the air like guillotines, the county would take them down, he said.

But it's all still a bit unclear. "This is our first swing at the plate," he said.

There is one quick though impractical solution.

The county's sign ordinance says that "no sign shall be constructed, displayed or altered without first obtaining a sign permit." A permit isn't needed to put a political sign in your yard because they are listed as one of 23 content-based categories of signs that are exempted.

Could the county scratch the content-specific exemption and require residents to apply for a permit to put up a candidate's yard sign?

Sure, but that's "not feasible," Trinidade said. "We would be skewered on our own petard."

What about the cities?

San Luis Obispo city staff is in the midst of a comprehensive update to the city's sign regulations "to assure the regulations on the books and enforcement practices are consistent with Reed," City Attorney Christine Dietrick said.

The city has rules about signs in two places: general sign regulations and election campaign regulations.

Notably, language in the general sign regulations says the intent of the rules are to regulate the time, place and manner that signs are permitted, "and not the content of signage."

However, other sign rules that fall under election campaign regulations say that campaign signs, specifically, shall not exceed 3 square feet per sign in residential zones and 10 square feet per sign in nonresidential zones, and shall be removed no later than 10 days following the election. The city allows campaign signs to go up anytime before an election.

"We are not enforcing any content-based restrictions," Dietrick said. "We have restrictions on illumination. We don't allow flashing and banners. Those kinds of regulations, they remain enforceable under Reed."

Other cities are sticking to the status quo.

Paso Robles, for example, has an ordinance that restricts the size of political signs — they shall not exceed 32 square feet and cannot be higher than 3 feet in front yards of residential areas, for example.

A spokesperson in the Planning Department said the ordinance hasn't changed recently, that the city is enforcing it, and he was unaware of any effort to change the rules.

This story was originally published April 6, 2018 at 1:14 PM with the headline "SLO County has enforced this political sign law since 1980 — but it's likely unconstitutional."