Corrales is no longer violating the U.S. Constitution’s protections for freedom of speech. Until the April 12 Village Council meeting, Corrales’ Sign Ordinance would have allowed the Village’s code enforcement officer to yank down signs with messages considered objectionable. Without regard to any specific sign controversy, Village Attorney Randy Autio had been warning for months that Corrales’ earlier law could be challenged in court as a violation of the First Amendment.
In a nutshell, nationwide the presumed constitutional problem is that regulations should not restrict the content of a message; content-based laws are deemed unconstitutional and therefore laws affecting freedom of speech must be “content neutral.” The Corrales Sign Ordinance adopted April 12 apparently passes muster. According to First Amendment specialist David Hudson, Jr., “Designation of a law as either content based or content neutral is an important first step in ascertaining whether it violates the First Amendment.
“Content based laws are presumptively unconstitutional and subject to strict scrutiny, the highest form of judicial review, whereas content neutral laws generally must survive only intermediate scrutiny.”
Such scrutiny, whether by a judge or a code enforcement officer, might determine that the message (content) of a sign on a wall here was obscene, for example, and had to come down.
But at the April 12 council meeting, most of the debate and requests for clarity about the draft Sign Ordinance focused, not on obscenities, but on real estate “For Sale” signs and how long they should be allowed to stay up.
When councillors seemed to reach consensus on such near-certainties as that privately erected signs should not be placed on public property nor on utility poles, Councillor Bill Woldman touched off a conundrum by asking what about signs posted on utility poles for movie shoots?
While clearly not permissible under the new sign ordinance, councillors easily concluded the movie set and crew parking signs should be allowed anyway, since those temporary directional signs are both necessary and movie industry standards.
Finally the only sign-related controversy that blocked a unanimous vote to adopt Ordinance 22-02 at the April 12 meeting was Councillor Mel Knight’s seasonal sign for Acequia Winery on the ditch bank next to Loma Larga.
The sign periodically erected for the winery that she and husband Al Knight operate a little west along Reclining Acres Road is clearly on public property, owned by the Middle Rio Grande Conservancy District. But Knight said they have ongoing permission from the Conservancy District to place the sign at that location.
Apparently such permission would not matter under the new regulations. Knight recused herself from the vote, so the new sign ordinance passed 5-0.
An article by Professor Hudson points out that going back to at least 1972, the U.S. Supreme Court has ruled that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”
On the other hand, some content-based laws have been upheld, such as those regulations against child pornography. “The Court also employs a categorization analysis providing that certain, narrow categories of expressions —such as obscenity, child pornography, true threats and incitement to imminent lawless action— can be prohibited precisely because of their harmful content.”
Beyond that, the professor noted, the Supreme Court in 1992 upheld a law in Tennessee prohibiting the display of campaign materials within 100 feet of a polling place.