by sharon Adaws .. at the Lafayette BART Station! OVER THREE YEARS AGO, when “only” 200 soldiers had died in Iraq, the organizers ofthe Iraq memorial made 20 crosses and pur them on a Lafayecte hillside across from the BART station. This, broughe the police, who questioned the organizersasthey were placing the crosses. People in passing cars yelled furiously ae them, Although the crosses wereon private property and did noe violate the Lafayerce sign ordinance, hey were vandalized and destroyed chat night. ‘Asthe numberof soldiers killed in Iraq reached the thousands, che organizers decided to cry again. In November 2006, the same hillside had political andelection- related signs thae (although numerous and large) did nor generate complaints to the Lafayette City Council, The organizers waited until after the election co create the memorial, beginning with 420 crosses andalargesiga (approximately 64 square feet) reading, “IN MEMORY OF 2,867 US, TROOPS KILLED IN IRAQ.” - TheLafayere Cy Council was flooded with complaints as soon as the memorial appeared. The memorial was again vandal- ized, once by a woman who crespassed and descroyed part of it, and a second ‘ime when the largesign was covered with black car. The property owners and orga- nizers, although aware of the identity of a least one of the vandals, declined co press charges. ‘The memorial sies on ewo privately owned losin Lafayette, visible from both Highway 24 and BART. Asof mid March, the memorial had neatly as many crosses, Scars of David and crescents asthe fallen soldiers; chesign wasupdacedco:”..3211 US.TROOPSKILLEDINIRAQ" Thenumber ofcrosss increases along with che number cof dead American soldiers. The memorial has sparked a lively debate over the parameters of “fre speech” and received local and national news coverage. Ie does not appear that the size or number of signs caused ehe reaction so ‘much asthe message, However, as stated by the US. Supreme Court, “a function offeee speech under our system of govern ‘ment isto invite dispute. It may indeed best serveits high purpose when itinduces a condition of unrest, creates dissatisfac- tion with condieions as they ae, oF even stirspeopletoanger.” erminillov. Chicago, 337US. 1,4(1949). The memorial appears to have succeeded in this respect. ‘The-city initially cold the organizers to remove or reduce the sie of che large sign. The city claimed chat its ordinance limited che size of memorials and political signs to four and six fee respectively, and that the large sign violated these size limits. However, the city recognized that thecrosses were exempr because each cross was less chan four square feet and thus could not be regulated by the city. ‘The organizers considered chelargesign also to be exempe as part of the memorial and refused to reduce or remove the sign. InlateNovember 2006, the Lafayecce City Council helda well-arcended public hear- ing on the memorial, where the majority of people spoke in favor of i! At the conclusion of the heating, the council directed staff co decermine whecher che ‘memorial was consistenc with che city's ‘ordinance, and allowed the memorial to remain pending staff's report. ‘THE LAFAYETTE ORDINANCE AND THE FIRST AMENDMENT ‘The City of Lafayecte’s sign ordinance ‘exempts from permit requirements various types of signs, including memorial signs not exceeding four square feet and poit- cal signs not exceeding six square fet. ‘The ordinance does not contain any limic (0 the number of exempt political or memorial signs. Because each cross, Sar ‘of David and crescent is no larger than four square fee, the city ordinance does not provide any basis co limiccheir number Although the memorial is on private property, the government may regulace speech activitieson private property where a substantial governmental interest is involved. Here, ehe city’s sign ordinance asserts interests in “health, safety and general welfare" as the bass for regulating signs, whichis a recognized governmental Apel 2007interest. For example, in Yong. American ‘Mini Theatres, 427'US. 50,63. 18(1976), the City of Detroit enacted an ordinance that regulated the locaton and spacing of adult movie theatres, but not other movie theatees. The court held that the ordinance was not unconstitutional, noting that “[eeasonableregulationsofthetime, place, and manner of protected speech, where those regulations are necessary to further significant governmental interests, ate permitted by the First Amendment.” Similarly, in PrumeYard Sbopping Center 1 Robins,447 US. 74,81 (1980), thecoure sated: its, of course, well established that a Seate in the exercise of its police power may adopt reasonable restrictions ‘on private property so long asthe restric- tions do noe amoune co taking without jusecompensationorcontravene anyother federal constitutional provision.” “Themain thrustofthe opposition, which objects to the content of the memorial, seeks to impose greater restrictions on policcal speech than on commercial speech, an objective that is not endorsed by the ordinance. As stated above, the Lafayette ordinance exempts specifically sized politcal and memorial signs. I also exempts a “for sale” or “for lease” sign shacisno larger than 32 square feet placed ‘on unimproved residential property ‘The US. Supreme Courthasconsistently held chat politcal speechisencicled cogrecter protection chan commercial speech. In Central Huon Gas & Electric Corp. Public Service Comm'n, 447 US. 957, 562-563 (1980), che coure explicitly stated: “The Constitution .., accords a lesser protection to commercial speech than to other const- tutionally guaranteed expression.” ‘As explained in Foti ». City of Menlo Park, 146 F3d 629 (9" Cir. 1998), alchough a city may enact ime, place and manner resrictionson signs, these estic- tions must be content neutral, Foti finds unconstitutional a Menlo Park ordinance ‘hat contained exemptions for realestate, safety, trafficand publicinformation signs. The exemptions were content based because “a law enforcement officer must ‘examine the content of. ..signs codeter- mine whether the exemption applies.” > Contes Costs Lawyer Similarly, under che Lafayetteordinance, a law enforcement officer would have £0 read the content of a sign to determine which size limi inthe Lafayecte ordinance applies. Under the ordinance, 32-square- foot “for sale” sign is exempe from permit requirements, while a permic is eequiced for memorials or political signs thae are much smaller. Thus, the ordinance contains impermissible content-based restrictions. ‘Theordinanceisalso vagueand violaces due process. There was no consensus whether the large sign isa “memorial” or politcal” siga, andiewas unclear which size limit would apply. As seared in ori, fandamental requirement ofdue process ischatastarute muse clearly delineace the condiitiproscribes.... Moreover, when. Firse Amendment freedoms are at stake, an ever greater degree of specificity and clarity of law is required.” Foi, 146 B3d at 638-39. FEBRUARY 2007 CITY COUNCIL MEETING ‘While city seaff was preparing the repore on che ordinance the mayor, vice-mayor and city manager mec with the organizers inanatcempe co avoidlitigationoverchese constitutional and regulacory issues. ‘Asa resule ofthat meeting, the parties drafted a memorandum of understanding (MOU). Under the MOU, here is no limit. Co the number of crosses, Sears of David ‘or rescenes because each is less than four square feet and chus exempt. The organiz- cers agreed to reduce ehe large sign to 32 square feet? Because only one ofthe two lotson the hillside is unimproved residen- tial, he city concluded chat the large siga. should be on chat lot. Thus, he organia~ ersagreed:omove chesign approximately 20 yards west, onto that lot. Finally, because yet another section of the ordi nance does not allow flags tobe afixed to signs, che organizers and che city agreed roremove the flag from che sign and place ic next roche sign. ‘Ac the ebruary City Council hearing, the Lafayetce City Council direceed the ‘mayor cosign the MOU, which sets forch thecermsofthe compromise. The organiz- cers and property owners also signed, and the MOU is now binding and in effect. CONCLUSION Time, ploce and manner resections of speech are permissible, but they must give ‘equal or greater protection +o political speech than cocommercal speech, Contco- versal political speech must be a higher priority underthe First Amendment because iis in greater need for constitutional peo- tection against content-based regulation. Fortunately, within our consticutional framework, the parties were able co reach an agreement thar preserved the right ro free speech. = Sharon Adams is a regiered patent attorney cand specializes in patents, trademarksandtberntel- Iecsual property matters. Sheisalioa member of the National LawyersGuild, attended bot Lafayette City Council bearings, and wrote a etter on bebalf ofthe gil tothe city on this ise "People of both sider of eis eave spk a he Gy Coun hearings abou hei chidre's ust requdg the memacil, and s nen neighbor hat posted sever sigs tat ny “Expose Chien Lone Noe Death” One of the erga of the engin smemaria, Jef Heaton, noes that “the chien whe lve eae 1 he memorial are not vin of hi wa in 1 phys sete, Unlike che childen in a ty oe fx going hanger thy are noe pong tbe blown op byacluterbomb they are nocd oleae sho. ‘They arenoof afd ofthe paren diapeating nt right Because they are Suni o Shia Ye smc ‘hey aes victims of he wa nrg ao hol be asking thei parents qin aout ic eve” * city’s mis on poll speech may amouae wo 2 repulbcory aking Ihe ce lckd sgn erin, the propery owner cold have at min sg a ge as they dested, es oa because ofthe sign dine ‘har the owners ar imie. This eultory sing ofthe propery owner! ight co expres thie Ft “Amendmen pela views on eel pe prapry Aafeyeesignortanc slow sbuossigean priate pent tcontinnocomaerialetin isl conae ‘alert Thus Secret ondancesoweds 32504 feo Yor se signon the wiproed dena, he lage sge i allowable nde sear, * Ifyou havea different poine of view * about this contéoversial subjeceand ‘would like uso cofisder publishing yours; please contact the editor at netlaw@pacbell net: ‘Ape 2007