Yard signs, mailers and disclaimers, the rules of the road answered

Every fall, in a thousand towns, a retired man with a clipboard and a municipal badge discovers that the fourteen-inch gap between a yard sign and the sidewalk is a matter of grave public concern. He has never been so alive. A sign has been in his town for four days, and he has read the ordinance, and the ordinance has opinions.

I am for the sign. The yard sign is the cheapest, oldest, most democratic piece of political equipment ever invented: no consultant, no cable buy, just a stake, a piece of corrugated plastic, and a neighbour willing to say, in public, which way he is voting. The Supreme Court has been friendlier to that sign than many town halls admit. So here are eleven questions, answered straight, with the cases and the caveats. Where state law decides, I say so and tell you where to look. This is a guide to the law, not legal advice for your particular lawn.

Your own front yard

1. Can my town ban political signs in my own yard?

No, not across the board. In City of Ladue v. Gilleo (1994) a Missouri suburb had an ordinance that banned nearly all residential signs. Margaret Gilleo put up a sign in her yard opposing the Gulf War and was told to take it down. The Supreme Court ruled unanimously for her. Writing for the Court, Justice Stevens treated the home as a special place: the sign in your own yard tells your neighbours who you are, and no cheaper or more effective substitute exists. A town can have rules about signs. It cannot erase a medium of speech that ordinary people rely on.

That was a case about a near-total ban. It did not say a town has no say at all, which brings us to the next question.

2. What did Reed v. Town of Gilbert change?

A great deal. In 2015 the Court decided Reed. Gilbert, Arizona, had a sign code with separate rules by category. "Ideological" signs got the most generous treatment. "Political" signs were allowed in larger sizes for the election season. "Temporary directional" signs, the small arrows that told people where a church was meeting on Sunday, got the least: they were small, and could be up for only a short window, which the code set at no more than twelve hours before the event and one hour after. The local church that used those signs kept getting cited.

The Court, in an opinion by Justice Thomas, held that a rule is content-based, and gets strict scrutiny, whenever you have to read the sign to know which rule applies. That the town meant no ill will, or had no hostility to the church, did not matter. All nine justices agreed the code failed, though they split on the reasoning.

The lesson for you: a town that treats your campaign sign differently from a garage-sale sign, a real-estate sign, or a church sign has a harder time defending itself than it did before 2015. Here is the plain-English test. If the code says "a political sign may be this big and up this long," ask whether a sign for a lemonade stand gets the same rule. If not, the code is suspect.

3. Can a town still limit the size and number of signs?

Yes, if the rule is content-neutral. Reed did not outlaw sign codes. It said the rules need to be about the sign, not the message. A town can say that no temporary sign in a residential zone may be larger than a stated number of square feet, or taller than a stated height, or placed within a stated distance of the road. It can say how many temporary signs fit on a lot, so long as the limit treats all temporary signs alike. Those are the kinds of rules courts have been willing to uphold, because they serve traffic safety and appearance without picking a side.

Where I would push back is on rules that seem to be chosen to cut one side off. A limit of one sign per lot that applies to everything is neutral. A limit that applies only to "political" signs is, after Reed, suspect. And an ordinance that says a homeowner may fly a flag but not a candidate sign, or the reverse, needs a justification that a lawyer will have to find.

4. How early can I put a sign up, and how long can it stay?

Many towns have time rules, such as no more than a set number of days before an election and removal within a set number of days after it. Before Reed, these were common. After it, a time rule that applies only to election signs is a content-based rule on the face of it, because you have to look at the sign to see whether it is an election sign. Courts have not all come out the same way on how much that matters, and some have upheld timing rules when the town could show a reason beyond the message. So you should neither assume the rule is dead nor assume it is valid.

My practical advice has three parts. Read the ordinance and note the exact wording. If the rule applies to all temporary signs equally, comply. If it applies only to political signs, you have an argument, but you should decide whether the argument is worth the fight over a stake in the lawn. Most campaigns do not need the fight. They need the sign down in time to collect it and put it in the garage for next time.

Where the sign can and cannot stand

5. Where can I not put a sign?

Four places, regardless of what your ordinance says about your own lot.

• The public right-of-way. The grass strip between the sidewalk and the street often belongs to the city or county, even though you mow it. Many ordinances ban signs there. Check where your property line is; the county's online map or your survey will show it.
• Utility poles and public property. In Members of the City Council of Los Angeles v. Taxpayers for Vincent (1984), the Court upheld a city's ban on posting signs on public utility poles and other public property, because the city had a legitimate interest in avoiding visual clutter. That case is often cited against stapling flyers to poles.
• Intersection sight triangles. Towns can keep a corner clear so drivers can see cross traffic. A sign at that spot is a traffic hazard and is an easy case for the town.
• Someone else's land without permission. A sign in a neighbour's yard, a business's lot or a farmer's field needs the owner's yes. Ask.

6. Can my homeowners association say no?

Often, yes. The First Amendment restrains the government, not your neighbours. An HOA's covenants are a private contract you signed when you bought. Courts have generally enforced them, including sign rules. That said, a number of states have passed statutes limiting how far an association may go in restricting political signs, usually allowing a sign of reasonable size in a reasonable period before an election. Check your state's statute on common-interest communities, and then read your covenants. Many HOAs have a rule you can live with, such as a single sign in the front yard for a window of weeks.

If your association has a restriction you think is unreasonable, the political answer is the one conservatives should like best: run for the board. HOA boards are low-turnout elections with a handful of votes. how to win a school board seat when nobody else is paying attention makes the case for a similar local seat, and the logic carries over.

7. What if I rent?

Your lease is the contract. Some leases forbid signs in windows or yards. Some states restrict how far a landlord can go in barring a tenant's political signs; the laws vary and I will not pretend to summarise fifty of them. Ask your landlord in writing, keep the answer, and check your state legislature's website for any tenant sign statute. A sign taped inside a window, facing out, is often the compromise.

Disclaimers and mailers

8. Does a yard sign need a "paid for by" line?

It depends who paid and what the law of your state says. Under federal law, public communications paid for by a campaign for federal office have to carry a disclaimer saying who paid, and whether the candidate authorized it. That requirement sits in federal election law, in the part of the code on disclaimers, and is enforced by the Federal Election Commission. If a candidate's committee prints the signs, the committee's name goes on them. The FEC exempts small items on which a disclaimer is not practical, such as pens and buttons, and its rules can be read on its website.

A homemade sign you paint yourself and put in your own yard is usually a different animal. For a state or local race, the answer is in your state's campaign finance law, which sets what a disclaimer must say, when it is required, and sometimes the minimum type size. Campaign committees generally follow the safe course and put a short line on every printed piece. The Supreme Court protected anonymous campaign literature by individuals in McIntyre v. Ohio Elections Commission (1995), holding that a ban on distributing anonymous leaflets violated the First Amendment. Disclaimers on a committee's communications are a different matter and the courts have allowed them, with an eye to disclosure of who is funding the message. If you are not sure, ask your state election agency or county clerk. They will often tell you.

9. What does a campaign mailer need?

Start with the disclaimer, which on printed material is typically a clear statement of who paid for it, often in a box so a reader can find it. Federal rules specify the wording and legibility for federal candidates; state rules cover state and local ones. Then add a few habits that keep a mailer clean.

1. Put the committee's name and mailing address where the law says to. The treasurer's office can tell you.
2. Do not copy a government seal, an official-looking envelope or an agency name. A mailer designed to look like a notice from the election office is a legal problem in many states.
3. Stick to claims you can document. Save the source for every number on the page. State laws on false campaign statements differ, and some have been struck down on First Amendment grounds, but a mailer that can be proved wrong is a bad mailer anyway.
4. Keep the receipts. Printing, postage and the list all go on the campaign's finance report. How campaign finance law works, and why you should check the FEC for the numbers sets out the basics of what gets reported and where.

Postal rules matter too. A campaign mailing should be addressed and prepared according to the Postal Service's standards for the mail class used. Your printer or mail house knows the specifications better than any blog does.

When something goes wrong

10. Someone stole my sign. Now what?

Take a picture of the empty hole first. Then report it. Taking another person's sign off his own lawn is theft or destruction of property in every state, and a number of states and towns have laws that deal with political signs by name. Do not retaliate. Do not pull up the other candidate's sign in the middle of the night; apart from being wrong, that is the quickest way to turn a minor irritation into a news story with your name on it.

Three practical steps. File a police report, because a stack of reports is how a pattern gets noticed. Keep a spare supply and replace the sign quickly; a replaced sign sends a message that stealing does not work. And if you have a neighbourhood camera that happened to catch the thief, tell the police rather than posting the video yourself. The sign is a piece of plastic. Your reputation is not.

11. The town sent a code-enforcement notice. What do I do?

Do not ignore it, and do not throw it away. A notice has a deadline, and missing the deadline can turn a correctable problem into a fine.

1. Read it twice. Find the section number of the ordinance the town says you violated and the date by which you must respond.
2. Get the ordinance. Most are online. Read the section, and read the definitions that go with it.
3. Ask whether the rule is content-neutral. Does it treat your sign differently because of what it says? If so, you may have an argument under Reed. If it is a plain size, height or location rule that applies to everything, you probably do not.
4. Check whether you are on public land. If the sign sits in the right-of-way, the simplest fix is to move it three feet.
5. Reply in writing before the deadline. Be polite, ask for a copy of the ordinance section, and say you are looking into it. A courteous letter buys time.
6. Ask for a hearing or appeal if you disagree. Notices usually describe how to appeal. A local board or magistrate hears it.
7. Talk to a lawyer if fines are accumulating or the town will not budge. Several legal groups that defend free speech take sign cases, and a lawyer's letter citing Reed and Ladue sometimes ends the matter on its own.

If the town is acting on a complaint from one neighbour, be courteous. A town that sees you as reasonable is more likely to be reasonable back. And if you disagree with the ordinance itself, the long-term remedy is a vote: go to a council meeting and ask for a change. Why Your City Can't Do That, Dillon's Rule and Home Rule Explained explains how much power a city really has to write its own rules.

What the pattern tells you

Look at the eleven answers together and a pattern emerges. The law protects the person who stays on his own land, follows the neutral rules that apply to everyone, and keeps his paperwork straight. It gets harder for the town the moment the rule depends on what the sign says. It gets harder for you the moment you move onto public land, or onto a neighbour's, or forget the disclaimer on something a committee paid for.

Politics is the one job where the other side's rules are often written by the other side. That is a reason to read them. The man with the clipboard is not your enemy; he is a civil servant who has been handed a rulebook. But the rulebook is only as good as the people who read it, and the freedom to put a sign in the yard is a freedom that gets kept by using it, and by knowing the rules well enough to hold the town to them. For more on how free speech rights hold up in the courts, Eight Supreme Court Cases That Explain What the First Amendment Protects has the major cases, and Seven Things Americans Get Wrong About the First Amendment clears up the common mistakes.

The bottom line

• Your yard is protected. City of Ladue v. Gilleo (1994) says a town cannot wipe out signs at home, and Reed v. Town of Gilbert (2015) says a rule that depends on the sign's message gets strict scrutiny.
• Towns can still set neutral rules for size, height, number and placement. Stay out of the public right-of-way, off utility poles and clear of intersection sight lines.
• A homeowners association is a private contract and can restrict signs unless your state's statute says otherwise. Read your covenants, or run for the board.
• Any printed item a committee pays for needs its disclaimer. Federal rules govern federal candidates; your state's campaign finance law governs the rest. When in doubt, ask the state election agency.
• If a notice arrives, read it, find the ordinance, answer in writing before the deadline, and appeal if you disagree. If your sign is stolen, take a photo, file a report and replace it.