Why don't they do something about political signs?

Unless everybody was asleep for the past few months, most are aware there was recently a primary election here in Oklahoma, with several seats up for grabs. There were contested primaries for virtually every state-level seat, from Governor down to State Senator, and both of Oklahoma’s seats in the U.S. Senate were up for election as well as Oklahoma’s five seats in the House of Representatives.

With two of the federal seats vacant (due to Jim Inhofe’s retirement from the Senate, and Congressman Markwayne Mullin vacating his House seat to run for Inhofe’s seat), a multitude of candidates sought those offices (13 candidates ran for the Senate seat, while 14 sought the House seat). All of this led to a ton of electioneering. It was hard to watch television, use social media, check the mail, or even drive around without being inundated with advertisements and signs encouraging voters to support or oppose various candidates.

After a while, most citizens grow weary of being bombarded by political ads. Questions start cropping up in voters’ minds, such as why can’t we limit the number of ads a campaign produces? Why can’t we limit where and how many signs a candidate posts? Why is Candidate X allowed to tell clear lies about Candidate Y? When is someone going to do something about all this?

The answers to questions like this all go back to the First Amendment to the U.S. Constitution. Approved in 1791 as part of the Bill of Rights, the amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .” While by its express terms the First Amendment only applies to the federal government, the Fourteenth Amendment’s Privileges and Immunities Clause provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” which extends the First Amendment to the states. The primary purpose of these provisions, as recognized by the U.S. Supreme Court in the 1957 case of Roth v. United States, is “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”

The definition of “speech” protected by the First Amendment is very broad. Going beyond merely the spoken word (literal “speech”) and the printed word (the literal “press”), the U.S. Supreme Court has held that virtually any effort at communication is protected speech.

For example, in Citizens United v. Federal Election Commission, the Court determined in 2010 that corporate expenditures to create a film critical of Hillary Clinton were protected “speech,” and that a federal law banning those expenditures was unconstitutional. As noted in First National Bank of Boston v. Belloti, “In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.”

This means that political parties, candidates, and organizations are free to use any means to communicate any idea to the general public, without governmental interference. Thus, virtually anyone can purchase an advertisement on television, radio, social media, or a newspaper, or send it through the mail, or even communicate it through text message, without the government’s permission to do so.

Additionally, the government cannot even check advertisements for truthfulness by the government before they run. The only real consequence for running a false ad is potential liability for slander (false oral communications) or libel (false written communications), and even then, the bar is high. In order to win a libel or slander suit, a political candidate must prove that a false statement is made with “actual malice” which means that the person making the statement made it with “knowledge that it was false or with reckless disregard of whether it was false or not.” Even when that standard can be met, it is likely to be after years of litigation, well after the race at issue is over, and so even this consequence is limited.

But if the government cannot check advertisements for truth, then how can Facebook, Twitter, etc., fact-check my social media posts and ban me? The difference is that social media companies are not the government.

A private company can generally control what goes out on its platform and can refuse to promote certain ideas

even if they are truthful. The First Amendment not only prohibits limits on what people can say, but it also “prohibits the government from telling people what they must say,” as noted in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. in 2006. Accordingly, social media companies can pick and choose what goes out on their platforms without legal repercussions. This is different for broadcast media (TV or radio), which are governed by the Federal Communications Commission; those companies are required by their licensing regulations to run ads from all candidates without regard for content.

The same rules largely apply to campaign signs. The Oklahoma Supreme Court held in 1979 in State ex rel. Department of Transportation v. Pile that “the roadways constitute a public forum utilized customarily for communication which may be restricted only narrowly to avert a clear and present danger.” Thus, while the government can ban signs on public property as determined by the Supreme Court in Members of City Council of Los Angeles v. Taxpayers for Vincent in 1984, it generally cannot restrict campaign signs and their placement on private property other than for reasons narrowly tailored to public safety (like obstructing traffic), according to City of Ladue v. Gilleo, a 1994 decision.

Accordingly, you can generally put whatever sign you want on your own property. By the same token, if someone helpfully puts a sign on your property you don’t want, you are free to remove it.

When considering these regulations, one of the most useful principles was stated by Justice Anthony Kennedy, concurring in part and dissenting in part in the 2003 decision McConnell v. Federal Election Commission, who was quoted by the majority of the Court in Citizens United: “The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” That principle is the guiding force behind the First Amendment, and limits any attempt at regulating campaign speech in any form.