The Sign of the Times: A Guide to Campaign Sign Regulations

Campaign yard signs are hard to miss throughout Minnesota cities during election season. While signs serve as a vital tool for candidates to reach voters, they often spark controversy and lead to complaints being brought to city hall.

If your city has been grappling with concerns about campaign yard signs, the LMC Research Team has compiled five essential guidelines your city should know about sign regulation.

1. Can cities regulate signs?

 Yes, cities can regulate signs as long as the regulations are constitutional.

Signs are just one of many examples of constitutionally protected speech under the First Amendment. What is considered speech is broad and includes not only talking but also symbolic expression like signs. Not all speech is treated equally; some speech can be constitutionally limited by the government under a less demanding standard.

When the constitutionality of a city ordinance is challenged, courts apply one of three levels of judicial scrutiny – strict scrutiny, intermediate scrutiny, or rational basis review.

Judicial scrutiny is a process courts use to review laws to determine if they are constitutional. The level of judicial scrutiny applied depends on the nature of the law being challenged. Strict scrutiny (the highest level of judicial scrutiny) requires the government to prove that there is a compelling interest behind the challenged law and that it is narrowly tailored to achieve that result. For a challenged law to pass intermediate scrutiny, it must further an important government interest and be substantially related to that interest. Under rational basis review (the lowest level of judicial scrutiny), the person challenging the law must prove that the government has no legitimate interest in the challenged law or that there is no reasonable, rational link between that interest and the challenged law. 

When applying judicial scrutiny, courts examine whether the ordinance treats signs differently based on content. City ordinances that regulate the location, size, and number of signs are generally content-neutral, meaning they do not focus on the message of the signs. These ordinances are subject to intermediate scrutiny; they must further an important government interest and do so in a way that is substantially related to that interest. On the other hand, city ordinances that regulate the content of signs are subject to strict scrutiny. Courts review these laws more harshly. To survive review, the city must have a compelling interest in regulating the signs and the ordinance must be narrowly tailored to achieve that result.

Cities should avoid ordinances that regulate signs based on content and stick to ordinances that are content-neutral.

2. Can cities regulate signs that are vulgar or contain profanity?

Residents often raise concerns about signs with profane or vulgar language or content, and cities often ask if they can regulate these types of signs. While cities can likely regulate “obscene” signs, they cannot regulate signs that are vulgar or contain profanity.

There is an important difference between profane or vulgar language and obscene language. Obscene language or content can be regulated in specific contexts, but what is considered obscene is limited. Minnesota law 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.”

Swear words are generally not considered obscene. The U.S. Supreme Court has noted that language may be indecent, offensive, vulgar, and profane without being obscene. So, even signs that contain profane or vulgar language or content are likely protected under the First Amendment, and cities cannot regulate them based on content alone.

3. Where can cities regulate campaign signs?

Most of what has been discussed so far relates to regulating signs on private property, which typically includes content-neutral regulations about the location, size, and number of signs.

But what about signs on public property, like city property? Speech that takes place on public property creates a question about whether it is a “public forum.” A public forum is a place that has a long-standing tradition of being used for public debate and assembly or has been designated by the city for this purpose. Public forums include, for example, public parks and sidewalks. Constitutional protection of the rights to speech and assembly varies depending on the speakers’ chosen forum, and traditional public forums have the strongest protections.

In traditional public forums, cities cannot regulate speakers or signs based on their message. Cities can, however, adopt content-neutral regulations that restrict time, place, and manner (when, where, or how people can express themselves publicly), while not interfering with the content of the speech. Time, place, and manner restrictions are subject to intermediate scrutiny and must further an important government interest in a way that is substantially related to that interest.

Cities should also be aware of laws regarding the placement of signs near voting locations. For example, Minnesota law prohibits campaign signs within 100 feet of the building where absentee voting takes place during the absentee voting period. Additionally, on Election Day, campaign signs are not allowed within 100 feet of any building that houses a polling place, or anywhere on the public property where a polling place is located.

4. When can cities regulate campaign signs?

While city ordinances can generally regulate the location, size, and number of signs, this is not the case during election season, which runs from 46 days before the state general primary until 10 days after the state general election.

Minnesota law requires cities to allow noncommercial signs of any size or number during election season. This law does not address location, making it likely that reasonable regulations on sign location still apply during election season. This does not mean, however, that cities can require campaign signs to be removed after election season, which would be considered a content-based regulation. Campaign signs that meet a city’s location, size, and number regulations can remain displayed after election season ends.

5. Can city elected officials and staff display campaign signs that endorse other candidates for local, state, and/or federal offices?

While elected officials and city employees are free to endorse candidates in their personal capacity (not as agents of their employer), Minnesota law prohibits them from using their official authority or influence to compel another’s political activity. This law does not directly discuss whether political activity includes endorsing candidates, so cities are encouraged to seek the opinion and guidance of their city attorney if questions arise.

As a best practice, elected officials and city employees should avoid endorsing candidates in their professional capacity. Typically, professional capacity includes using official job titles or the fact that they are an elected official or city employee, conducting city business, attending city meetings, and taking official actions, among other activities.

However, elected officials and city employees are free to endorse candidates in their personal capacity as private citizens. This includes posting signs on an individual’s private property that endorse a particular candidate. As long as the endorsement is within their personal capacity as a private citizen, and as long as the sign complies with city sign code, it is likely constitutionally protected speech.