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The Court Speaks: D.C.'s Sign Ban Must Die

"Why doesn't the city just fix the problem?"

That's U.S. District Court Judge Emmet Sullivan speaking. Wait, there's more:

"No citizen in this city should have to go through what these citizens went through. No one should be confronted with this nonsense. And that's what it is, nonsense."

Good stuff, huh? Yes, it's vindication and more for the American University Park neighbors whose struggle against the District of Columbia's speech police I've been chronicling in the column and here on the big blog.

Quickly, what happened on Ellicott Street NW is that some neighbors got wind of what looked like an attempt by a developer to tear down a house on their block and put up a McMansion in its place. They approached the developer, who wouldn't talk to them, so they took their message to the public, posting signs on their lawns protesting any attempt to build mega-sized houses on their block.

Enter the city, which cited several homeowners for violating the District's sign ordinance, which the city claimed prohibited any signs except those supporting political candidates. This was obviously unconstitutional and absurd and some homeowners took the city to court, where the District has now had its head handed to it by an outraged judge.

The District, after initially defending its boneheaded moves, has now agreed that the law is indeed unconstitutional and needs to be changed. But D.C. says it will take some months to do that, and Judge Sullivan was having none of that. He insisted that the city move now, "on an emergency basis."

"Tell the bureaucrats to get to work and write the law," the judge said. "Given the fact that this is an election year, too, you would think that the people on the city council would be especially sensitive to this issue.... It gets down to people's right to express what they think about houses in a development, what they think about people not picking up dog poop."

Sullivan wanted action--right away. In fact, he sent the city's lawyers out for an hour to see if they could come to some better resolution. The city came back promising not to prosecute or ticket the A.U Park residents and to change the law as fast as they could. The city's lawyer called it "unfortunate" that the residents were ticketed and that they "went through that quagmire."

Eventually, the judge agreed to give the city a week to get rid of the ambiguous sign law. This, he said, "is an issue that potentially affects every homeowner, every renter in the city. The opportunity to express one's views is very important."

The D.C. lawyer agreed: "Yes, it's precious to Americans."

The cause of this problem was the outsourcing of the writing of Washington's building code to a private entity that writes laws for local governments to approve. Nobody noticed that the code actually sought to cancel the First Amendment to the U.S. Constitution.

Supposedly, the District is working to scrap that part of the building code.

Don't believe it til you see it in writing. Even as the District's lawyers are heaping promises and apologies on the judge, the city is launching a new war against signs in another part of town. On Capitol Hill, a conservative minister's decision to put a stone marker on his front lawn containing the text of the Ten Commandments has brought the wrath of the District upon him.

As the Post reported over the weekend, the District has chosen this sign for selective enforcement using what a transportation department official called "a public interest balancing test." Translation: The city government doesn't like what the minister has to say, so it is throwing the book at him. Once again, a beleaguered citizen will have to go to court to prove to the city that it cannot tear up the Constitution just because it doesn't like what someone says.

This one is far from over. Judge Sullivan needs to stay tough and keep pushing until the city decides to follow the law and the spirit of an open society.

By Marc Fisher |  June 5, 2006; 7:23 AM ET
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Comments

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I had to laugh when I saw this one. I just finished law school and also just studied resdiential sign bans under the Constitution for the bar exam. Yep. This law is a stinker and needs to go. As for the Capitol Hill marker, that gets to stay too according to my "Basics of Constituitonal Law" textbook. LOL.

Posted by: NewLawGrad | June 5, 2006 8:25 AM

I had to laugh when I saw this one. I just finished law school and also just studied residential sign bans under the Constitution for the bar exam. Yep. This law is a stinker and needs to go. As for the Capitol Hill marker, that gets to stay too according to my "Basics of Constituitonal Law" textbook. LOL.

Posted by: NewLawGrad | June 5, 2006 8:25 AM

The Capitol Hill case may be a totally different situation because the front yard of the house in question (like those in other older parts of the city)is public space and not private property. In the early years of the city, L'Enfant's wide streets and avenues seemed too wide to city planners of the time, so they permitted the building of bay windows, stairs, and other such elements on what is in fact part of the street ... Hence the District's Department of Transportation's interest in removing the sign. I am not a lawyer, so I may be wrong, but I do believe the District has the right to regulate what signage may be erected in public space.

Posted by: Lance | June 5, 2006 9:38 AM

annoying as the ten commandments one may be (face it, it's prosletising), it should be allowed. Sadly, if they want to be bad neighbors, it's their right to be it.

Posted by: will | June 5, 2006 9:55 AM

What is particularly galling about this case is not the mis-application of the law -- which is terribly galling -- but the apparent enthusiasm of the inspectors in doing the developer's bidding against the residents. If you've ever dealt with DCRA trying to stop a genuine nuisance -- and I have -- you'd find this enthusiasm puzzling, because in other cases the unoffical slogan of the department seems to be, "There's nothing we can do about it." It's amazing what they can do when they put their minds to it. DCRA has a history of only taking enforcement action in cases where they are clearly over their heads, and then pointing to those cases as reasons why any enforcement anywhere is impossible.

Posted by: Taxpayer | June 5, 2006 10:06 AM

Contractors writing laws?

Posted by: Jennifer | June 5, 2006 10:08 AM

I suppose that the city could alternately ban all signs (including political ones), merely declaring that the signs are distracting to passing motorists.

Man, I hate all the political signs. Get rid of that ugly, poluting garbage. Make the candidates run on platforms instead of sign proliferation.

Posted by: NW DC Res. | June 5, 2006 10:27 AM

For this the District wants a real Congressman and two Senators?

Posted by: Steve | June 5, 2006 11:03 AM

I must apologize to the DC Dept. of Trans. The crazy new lines on Westmoreland Circle (mass/western) are actually working to slow traffic down a bit. The first couple of days was a demolition derby but its improving for cars. Pedestrians still must run to get across the street and have a death wish, but the cars are slowing for each other, even if not for pedestrians. DDOT - please work more on pedestrian safety there. The MoCo side of Mass is the worst and there are lots of people walking from the bus to cross Mass there.

Posted by: MoCoDC | June 5, 2006 11:11 AM

Who's the genius lawyer the city put up to defend this one?

Posted by: Anonymous | June 5, 2006 11:33 AM

Wow - you'd think a company that specialized in writing codes for local governments would have at least a passing acquaintance with the constitution.

Posted by: h3 | June 5, 2006 11:53 AM

Echoing what Taxpayer wrote, why is it that DCRA goes after individual taxpayers for exercising their 1st Amendment rights, but seemingly can't be bothered with all the commercial signs on utility poles advertising We Buy Houses, Martial Arts Summer Camp, etc.? Those scofflaws are allowed to litter the city with impunity. Go figure.

Posted by: ralph | June 5, 2006 1:24 PM

Hello Will:

You say: "annoying as the ten commandments one may be (face it, it's prosletising), it should be allowed. Sadly, if they want to be bad neighbors, it's their right to be it."

Would you say the same if the sign were promoting Buddhist, Islamic, Jewish, Hindu or other religious views? Why is it that the political correctness in this country directs us to be tolerant of every other religion in the world except Christianity?

I'm doubtful that God exists but I also know that most of the citizens in this nation are Christian. I have no trouble co-existing with those whose opinions differ from mine.

Incidentally, I think political correctness is a secular religion that is equally prostletyzing in its own way.

Posted by: NW DC Resident | June 5, 2006 1:39 PM

There's a difference between a sign and a monument. The city can regulate the form of lawn signs (for example, height, width, thickness, materials) in a way that protects individual expression without being obnoxious to neighbors.

The Gospel teaches "Do unto others as you would have them do unto you." This is codified in American law as the First Amendment. In any democratic society which respects fredom of religion, the majority religion has an extra obligation not to use its dominant position to repress others. Freedom of belief and expression protects today's cultural or regional majority from tomorrow's demographic change.

Posted by: lart from above | June 5, 2006 2:30 PM

The reason that 10 commandments "sign" should be outlawed is because it is HEINOUS looking. UGH! Too bad we cannot regulate taste . . .

And, yes, I am a Christian. And, I'm kidding about regulating taste (for those of you who cannot tell the difference).

Posted by: JS | June 5, 2006 2:35 PM

h3 writes: "Wow - you'd think a company that specialized in writing codes for local governments would have at least a passing acquaintance with the constitution"

Perhaps this contractor was outsourced to India or the Phillipines.

Posted by: CT | June 5, 2006 2:48 PM

To NW DC Resident who says "Would you say the same if the sign were promoting Buddhist, Islamic, Jewish, Hindu or other religious views? Why is it that the political correctness in this country directs us to be tolerant of every other religion in the world except Christianity?"

News flash: the 10 Commandments are Judaism's gift to the world. They are from the Hebrew bible (referred to by Christians as the Old Testament). They predate Christianity by about a thousand years. Moses -- perhaps you've heard of him? Well-known Jew.

As for the monument, yes the Capitol Hill front yards are indeed public space, but there is a factual question here of selective enforcement. It has been alleged that there are literally dozens of garden ornaments within the Capitol Hill Historic District for which no such permission has ever been required. If that is the case, no matter what the letter of the law says it may be impossible for DC to block this monument if doing so would mean discriminating against this particular ornament. Why? Not the first Commandment, but the First Amendment, as well as guarantees of equal protection in the Fifth and Fourteenth Amendments.

Posted by: Meridian | June 5, 2006 3:33 PM

hahahaha....I'm sure new changes will be written in 'a week'. please.

Posted by: dude | June 5, 2006 3:53 PM

while it is not inconceivable that the city would contract out the drafting of legislation -- which tends to be a highly specialized craft -- it is worth noting that this is just another in a long line of examples that undermines the "conservative" theory of contracting out government-type work to the private sector because the private sector is "more efficient" than government bureaucrats.

Obviously, that is not always the case.

Posted by: OD | June 5, 2006 4:25 PM

The very idea that someone -- anyone -- wold object to the placement of anything, even if it is the Ten Commandments, on someone's own property is disgusting.

Here's a tip: If you don't like the monument, turn your head.

Posted by: Glover Park | June 5, 2006 4:34 PM

Glover Park: if you have been paying attention, you would realize that what is central to this dispute is the fact that in Capitol Hill, front yards are not private property -- they are the city's property.

So it is not "someone's own property." While that doesnt mean the city can act in a discriminatory way, it does mean that the rules are very different from those that would apply to the ordinary, privately owned front yard.

Posted by: Meridian | June 5, 2006 5:30 PM

Marc points out, rightly:

"Once again, a beleaguered citizen will have to go to court to prove to the city that it cannot tear up the Constitution just because it doesn't like what someone says."

Now, explain to me slowly why that applies to the First Amendment in DC but not the Second.


Posted by: Jim, Georgetown | June 5, 2006 9:03 PM

I knew what I was saying -- the fact that front yards on the Hill are publc property is equally disgusting to me.

Man, this city is f-ed up.

Posted by: Glover Park | June 6, 2006 9:26 AM

Jim:

Because a consistent string of Supreme Court precedents has interpreted the Second Amendment less expansively than the First, giving effect to its language concerning "well-regulated militias" and declining to extend an absolute right to individuals to bear whatever kind of arms they like.

One may legitimately disagree with that line of precedent, but that's what it is. Nothing in DC's gun laws (however ineffective they may be in preventing crime) has been held to run afoul of them.

Posted by: Meridian | June 6, 2006 10:22 AM

It's spelled: proselytize...look for it in next year's National Spelling Bee.

Posted by: Mr. Scripps | June 7, 2006 6:48 PM

The Ten Commandments dispute is being misrepresented somewhat. This is an out-of-town lobbying group that bought a residential townhouse, on a residential block, and promptly set up a lobbying business in it, against city zoning code. They say they applied for a permit five years ago, but apparently no local ANC reps have ever heard of it (in most such cases the local resident gets the ANC on board from the get-go to help with approval), and they seem to be confused about the basic steps required for a permit.

In any event, no permit was issued.

But this group did not appeal, did not try to get the local ANC to help (like actual city residents would do) and they did not sue. Instead they decided they were above the law and did not have to get a permit after all.

As for selective enforcement, that's sortof true. There are other things in yards on the Hill that probably should have gotten permits.

But I also know of several front yard that have had to get permits.

It's not some huge conspiracy. It's simply a matter of who gets reported to the city. In this instance, this group made a big deal out of it, claiming religious persecution instead of actually going through the admittedly frustrating permit process. So, naturally, the city got wind of it.

And, yes, the space in question is PUBLIC property. The reasons for permitting are varied, but the biggest is because all sorts of utility lines run through the front yards on the Hill. Everything from gas to electric to sewer lines. The city has to keep track of what's being put in. Yes, we residents have to maintain it, but the utilities underneath are not our property and how they are maintained and how access to them is limited (by things like giant granite monuments) affects not just us. It affects our neighbors as well.

In this instance, the tablets are a fairly attractive granite monument. But it is sunk pretty deeply into the ground, on a concrete pad. It's clearly a permanent structure, and as such needs a city permit.

This out-of-town group's decision to ignore local law, deciding they are above it, reeks of hubris. And their initial decision to put such a monument in place on a residential street reeks of being a bad neighbor, inconsiderate of the residential nature of the block.

Posted by: Reason5 | June 8, 2006 6:23 PM

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