By Tori Kee

The 2020 presidential election brought a fresh wave of political signage to cities, including signs that contain profanity and partisan language. More than two years later, many cities continue to receive complaints about signs that contain swear words, especially near schools, busy city roads, and on bus routes — leaving city officials asking how they can address the issue.

First Amendment protections

The First Amendment protects signs as speech; as a result, courts closely review attempts to regulate signs. In 2015, the Supreme Court decided Reed v. Town of Gilbert, which has since become the pivotal case in determining the validity of sign ordinances.

Under Reed, courts now presume that sign ordinances which restrict speech — expressly or implicitly — are unconstitutional. Before conducting this analysis, courts will look at the effect of the sign ordinance to determine whether it regulates signs differently based on the content or message expressed in the sign. If the court finds that the ordinance restricts the speech based on the content, it will apply the strict content-based standard to review the challenged ordinance. If the sign ordinance does not regulate the message or content of a sign, courts will apply the less strict content-neutral standard in its analysis.

Courts generally uphold sign ordinances that are content-neutral and further a significant government interest. Therefore, cities should avoid implementing regulations that prohibit signs based on their content or message. So, what can cities do when it comes to signs and flags?

Number, size, and placement of non-commercial signs

Cities may not regulate the signs and flags based on subjective standards — including campaign signs — for safety or aesthetic reasons. Cities may regulate the manner in which signs and flags are displayed, based on objective standards like size, location, number of signs, etc. However, cities cannot discriminately regulate signs based on the subject matter discussed or message expressed.

Cities should keep in mind the three things that courts analyze when determining if city regulations infringe upon free speech:

• Location: Where speech occurs, focusing on public property.
• Content: The expressed viewpoints.
• Content neutrality: Neutral interpretation of the expressed message that does not show disapproval for specific types of messages.

Political signs in Minnesota

During election season, cities may not enforce any size and number regulations of signs. Minnesota Statutes, section 211b.045 requires cities to allow noncommercial signs of any size or number during election season, from 46 days before the state general primary until 10 days after the state general election, regardless of local ordinances. However, this law does not give cities the authority to prohibit political signs during other parts of the year. Outside of election season, a city’s sign ordinance applies, but campaign signs may still be posted outside of the parameters listed above at any time during the year as long as they abide by the number and size restrictions in the ordinance.

Profanity in signs

Community members tend to be particularly upset by signs on private property that contain profanity, and cities question whether such language is considered obscene and can be regulated.

Obscenities can be regulated in specific contexts, but the definition of obscene content is limited. Minnesota Statutes, section 617.241 defines obscene as “work, taken as a whole, [that] appeals to the prurient interest in sex and depicts or describes in a patently offensive manner sexual conduct and which, taken as a whole, does not have serious literary, artistic, political, or scientific value.” Generally speaking, swear words are not considered obscene, in fact the Supreme Court has noted that language may be indecent, offensive, vulgar, and profane but not reach the level of obscenity.

Therefore, even when a sign or flag contains profanity, it is most likely protected speech under the First Amendment.

Alternatives to regulations

Many complaints about signs deal with the language used in the expression and not as much about the message. Citizens can be encouraged to have open and honest conversations with their neighbors about the effect profanity and other messages has on them.

Many citizens express concerns about the effect such profanity has on their children. Citizens can use it as an opportunity to teach their children about the First Amendment right to free speech and a lesson on what is considered appropriate language in their household. Parents and other adults can lead by example by expressing their opinions through less controversial signs or by ignoring signs they find offensive all together.

Because First Amendment issues are very fact specific, the city should work with its city attorney to review the city’s sign ordinance and determine its options. Learn more from the LMC information memo at lmc.org/signs.

Tori Kee is staff attorney with the League of Minnesota Cities. Contact: [email protected] or (651) 281-1292