Columnist Bill Newman: First Amendment rights at stake

  • Alyssa Kesselmanwaves campaign signs outside a Roswell, Georgia polling place.  ATLANTA JOURNAL-CONSTITUTION/TNS/Bob Andres

Published: 12/3/2018 8:18:17 AM

It was 1988. Michael Dukakis was running for president, and two western Massachusetts supporters, Walter Tauber and John Fitzgerald, wanted to place a “Dukakis for President” sign on their front lawns.

There was a problem. They lived in Longmeadow, and a Longmeadow bylaw prohibited political lawn signs. Dr. Tauber and Mr. Fitzgerald lobbied diligently for the town to repeal that prohibition, but the Select Board refused. 

That result was unacceptable. Dr. Tauber’s family had emigrated to the United States as refugees from Nazi Germany. The rise of Hitler and the Third Reich seared into his consciousness the importance of freedom of speech. As Tauber later wrote in his federal court affidavit, “I believe that the rights guaranteed by the First Amendment to the United States Constitution are of the utmost importance in maintaining a free society.”

Fitzgerald’s story was different, but no less powerful. He was a high school American history teacher, who had served as an army combat infantry platoon leader in Vietnam. He was wounded in battle and retired with the rank of captain after four years of service.  Fitzgerald couldn’t tolerate the discrepancy between what he was teaching his students about liberty and democracy and the abrogation of freedom of speech in his own community.

Tauber and Fitzgerald contacted me as the recently hired director of the western Massachusetts ACLU (ACLUM) office. That year’s presidential election was fast approaching, and immediate legal action was required. On their behalf, ACLU cooperating attorney Lan Katz and I sued Longmeadow.  

We won the case, which perhaps, in retrospect, is not surprising. After all, no speech is more highly protected than political expression. Indeed, at the federal court hearing in Springfield on our motion for a preliminary injunction, the town conceded that its ban violated the First Amendment. 

To be fair to Longmeadow, when it came to political signs in 1988, the town actually was not an outlier. Quite to the contrary, many municipalities in western Massachusetts at that time, including Northampton, prohibited all political lawn signs. Amherst allowed only one political sign per precinct per candidate each election.

After Judge Frank Freedman’s decision in Tauber v. Longmeadow, municipalities across western Massachusetts repealed and rewrote their sign ordinances. And beginning in 1994, so did cities and towns across America. That year, the Supreme Court explicitly held that political lawn signs constituted highly protected speech. 

But fights over lawn signs have continued here. At times, signs have been stolen (which is a crime) and other times defaced (also a crime). And sometimes elected officials have disingenuously attempted to circumvent the constitutional guarantee.

Consider Westfield, where in 2011 an across-the-street neighbor of Mayor Daniel Knapik put up signs supporting the mayor’s opponents. The anti-Knapik signs only lasted 20 minutes before the mayor (yes, the mayor himself) ordered the DPW to cart them away. 

In the lawsuit that ACLUM cooperating attorney Luke Ryan and I filed against the mayor and the city, federal district court judge Michael Ponsor ruled that Knapik’s proffered justifications could not withstand constitutional scrutiny. The First Amendment was vindicated.

Fast forward to October 2018, when the Holyoke City Council passed an ordinance that prohibits residents from displaying lawn signs between Dec. 1 and March 1 (at least if they haven’t first registered the content of their signs with the building inspector; the ordinance is unclear about that). The ordinance also prohibits temporary signs, including bumper stickers, on vehicles all year round. Mayor Alex Morse sensibly vetoed the ordinance, pointing out its constitutional infirmities in his veto message. 

Morse had it right. After all, the highly protected status of lawn signs now is beyond dispute. In addition, the Supreme Court in 2002 ruled that a city cannot require a person or group to register before utilizing their constitutionally protected free speech rights (in that case going door-to-door with a religious message). 

Nonetheless, the Holyoke City Council on Oct. 16 overrode Morse’s veto by a vote of 9-3 and enacted the ordinance. Really, I’m not making this up.

Right, you know where this is going. This time the legal team (we are representing seven city residents) includes ACLUM Managing Attorney Ruth Bourquin and Boston-based First Amendment attorney Jeffrey Pyle, the same Jeff Pyle who I represented 25 years ago when he was a senior in high school, in his successful free speech lawsuit against the South Hadley School Committee, often referred to as the “tee-shirt case.”

On Nov. 16, we filed our complaint against Holyoke, and on Nov. 28, federal district court judge Mark Mastroianni issued a preliminary injunction that prohibits the city from enforcing the registration requirement on signs and the ban on bumper stickers. In the meantime the City Council indicated by a vote of 13-1 that its own ordinance really shouldn’t be enforced. Thirty years after the Tauber case, the reasons expressed to justify interfering with residents using lawn signs to express their convictions and viewpoints have not changed. The Holyoke councilor who spearheaded the fight for this ordinance staked his position on public safety, claiming that drivers, distracted by the signs, would cause accidents. He also argued that the signs were not aesthetically pleasing. No explanation existed for why signs were safe from March 1 to Nov. 30, but not Dec. 1 to March 1, or why permanent, but not temporary, signs on cars should be allowed.

The public safety arguments can be fairly described as just plain goofy. As for aesthetics, may I suggest that certain public officials have failed to appreciate the beauty of the First Amendment and the precious right to freedom of expression that it guarantees.

Bill Newman, in addition to his ACLU work, is the host of the weekday Bill Newman Show on WHMP. He also is the author and voice of the Civil Liberties Minute podcast, and his new book is titled “Life on the Co-op Plan.” His column appears the first Saturday of the month.

Daily Hampshire Gazette Office

115 Conz Street
Northampton, MA 01061


© 2018 Daily Hampshire Gazette