In his classic novel about the smothering control of a totalitarian state, 1984, George Orwell described how the hero of his story, Winston Smith, although deathly afraid of Big Brother and the Thought Police and all they could do to him, took the first step toward freedom by writing in a diary what he was really thinking. If it was discovered, he would be punished by death, or at least by 25 years in a forced-labor camp. But that act of one person communicating his thoughts on paper in the hope that someone else would read them was liberating.

What’s that got to do with Rhode Island sign ordinances? Let’s start with the conclusion: It seems safe to say that every sign ordinance in the State of Rhode Island unconstitutionally infringes on citizens’ free speech rights, and some are, well, truly Orwellian.

A sampling of sign ordinances1 in Rhode Island communities should demonstrate this beyond doubt.2

Municipal regulation of signs

Municipalities in Rhode Island have generally tended to regulate signs like any other activity or use, rather freely, without regard to the fact that by definition signs communicate information3 – that is, they contain “speech” – and free speech is guaranteed under the United States Constitution.4

A big part of the problem is the way “sign” is defined in the ordinances. Although some of the broadest definitions have curious loopholes,5 almost all of them are extremely broad.6 In East Greenwich, for example, a sign is “Any device, fixture, display, placard, or structure that uses any color, form, graphic, illumination, symbol, and/or writing to advertise, announce the purpose of, or identify the purpose of a person or entity, or to communicate information of any kind to the public.”7 Westerly says a sign is “A structure or device conveying information to the public in written or pictorial form.”8

Little Compton, if possible, goes even further, defining a sign as “any device that is sufficiently visible to persons not located on the lot where such device is located to attract the attention of such persons or to communicate information to them.”9 Since “device” is not defined in the ordinance, Little Compton apparently regulates noisy wind chimes, outdoor (or in-front-of-the-window) Christmas trees, and flagpoles as signs.

This definitional problem is compounded by the almost unlimited scope of most sign ordinances. Contrary to the general rule in American law that “if it ain’t illegal you can do it,” sign ordinances commonly provide that signs not expressly permitted by the ordinance are prohibited.10 This puts the onus on citizens to find express legal authority for whatever signs they wish to post.

Moreover, many ordinances require official approval for signs11 – sometimes double approval12 – along with payment of a fee,13 but they usually do not provide any standards to govern this discretionary power.14 And where standards are published, they may be illegal by, for example, regulating sign content.15 In some communities anonymously posted signs are illegal.16

Another questionable – and probably illegal – feature of many Rhode Island sign ordinances is their preference for governmental signs over private citizen signs17 and for commercial over noncommercial signs.18 Rhode Island sign ordinances commonly prohibit19 or restrict20 off-site or off-premises signs regardless of their content. In fact, some ordinances even prohibit signs calling attention to on-site uses – like a convenience store at a gasoline service station – if it is not the principal use on the property.21

Portable signs, like those carried by doomsday prophets (“Judgment is Coming!”) are flatly prohibited in many Rhode Island communities,22 or allowed only with government permission.23 Nor can the peripatetic message bearer stay home and post dire warnings in his living room window, at least if it covers more than 50 percent,24 or 25 percent,25 or even 1526 or 10 percent27 of the window area.

Political signs, which along with religious signs most clearly implicate freedom of speech concerns,28 are often restricted by duration,29 number and dimensions,30 and even by content31 under many ordinances. At least one ordinance flatly bans all political signs,32 and another prohibits “off premises” political signs, whatever they are.33 The Town of Glocester allows only “party committee members” to put political signs on their lawn.34 Sometimes candidates for public office or other political figures are made responsible for signs that may have been posted anonymously.35

Likewise, church signs36 or bulletin boards37 and other signs carrying religious messages are frequently burdened with heavy restrictions, or even prohibited altogether.38 Holiday decorations are also stringently regulated under some sign ordinances.39

Allowable signs under some ordinances are saddled with such incredibly detailed requirements that they are, in effect, placed in a legal straightjacket. In Hopkinton, for example, off-site directional signs must measure “six (6) inches by twenty-four (24) inches, have a white background with green letters of Helvetica style” and be “no less than six (6) feet in height and no more than ten (10) feet in height.”40

Finally, nonconforming signs are illegally regulated by some ordinances, by denying their grandfathered status, either by requiring them to be amortized within a limited period of time41 or by prohibiting any change in their content or wording.42

Constitutionality of signs

The language of the United States Constitution regarding speech is well known: “Congress shall make no law abridging the freedom of speech.”43 Early in the last century this fundamental rule was extended to the states.44

What does it mean to “abridge” freedom of speech when it comes to signs?45 The First Circuit Court of Appeals held in 1996 that the combined effect of a Massachusetts statute and a local sign ordinance, which together permitted on-site noncommercial billboards but prohibited such billboards off-site, violated the First Amendment.46 The court pointed out that, while the prohibition against off-site non-commercial billboards was not, on its face, based on the billboards’ content, its practical effect was to penalize noncommercial rather than commercial billboards, since most billboards expressing ideas or advocating policies (“Stop the War” or “Smith for Mayor”) are, by their very nature, located off-site.47

Then in 2009 the United States District Court for Rhode Island applied these principles to a suit based not on a local sign ordinance, but on the Rhode Island Outdoor Advertising Act,48 which generally prohibits outdoor advertising visible from interstate highways but excepts “[s]igns, displays, and devices advertising activities conducted on the property upon which they are located.”49

The plaintiff, owner of a small business with a rooftop outdoor advertising sign visible from Interstate 95, used the sign to advertise both his own products made on the premises and other products and services for both commercial and noncommercial entities.50 When the Department of Transportation attempted to have the plaintiff’s sign removed, he sued, claiming that he had a constitutional right to maintain the sign. Although the court acknowledged that prohibitions of off-premise commercial advertising “may be constitutional,”51 it held the statute to be an unconstitutional content-based restriction on free speech because it allowed on-premises noncommercial advertising but prohibited such advertising off-premises.52

These cases make clear, at a minimum, that sign ordinances cannot broadly prohibit off-premises signs unless all noncommercial signs are exempt. In other words, anyone, anywhere, can post or carry a sign promoting religious, political, or other kinds of ideas. Period.

Of course, that does not mean that signs cannot be reasonably regulated as to location and dimensions, but overly stringent regulations of this type are also unconstitutional.53

Conclusion

Finding fault with sign provisions in Rhode Island zoning ordinances is like shooting fish in a barrel. As pointed out in the examples above, some sign ordinances are not only unconstitutional; they are truly Orwellian in attempting to totally control public written expression within a community.

In the Town of Scituate, for example, before any sign is erected, enlarged, or relocated the zoning inspector must certify, in writing, that the proposed sign conforms to the zoning ordinance; signs proposed within a village overlay district first must be submitted to the village overlay district review committee; no off-site signs are permitted except signs erected by the town, the state or the United States government;54 and all signs that do not conform to the ordinance must be removed or changed to conform within seven years of the ordinance’s enactment.55 Nor is there any exemption for signs carrying political, religious, or philosophical messages.56

What is frightening in this survey of sign regulations in Rhode Island is not the fact that they all fall short of constitutional standards; it is how far they fall short, and how meekly the citizens of this state submit to them. Remarkably, while virtually all of the sign ordinances include among their objectives the protection of the physical appearance of the community,57 none of them give so much as a passing nod to the countervailing goal of protecting freedom of speech.58

Not a good sign for the future of free speech in America.

Footnotes:

1. Although most ordinances regulating signs or advertising are in zoning codes, such regulation is also found in other local enactments, such as public safety or licensing ordinances.  (back to text)
2. It should also be noted that expansive control of signs is encouraged in the Zoning Enabling Act of 1991, which states that the standard provisions of zoning ordinances include, “Permitting, prohibiting, limiting, and restricting signs and billboards, and other outdoor advertising devices.” R.I.G.L. § 45-24-33(a)(16). However, the enabling act also states that this control should be accomplished “through reasonable objective standards and criteria.” Id., § 45-24-33(a).  (back to text)
3. See East Greenwich Zoning Ordinance, § 260-27(A), defining a “sign” in part as “Any device, fixture, display, placard, or structure that uses any … writing to … communicate information of any kind to the public. The definition in the Hopkinton Zoning Ordinance, § 27(B), is virtually identical.  (back to text)
4. U.S. Const., Amend. I. The Rhode Island Constitution also guarantees free speech. R.I. Const., Art. I, § 20 (freedom of press), § 21 (freedom of speech).  (back to text)
5. See, e.g., Scituate Zoning Ordinance, Art. IX(55A (defining “sign” as any “visual display which directs attention to a residence, permitted business, commodity or service which is conducted, sold or offered”); Warren Zoning Ordinance, § 32.111 (defining “sign” as any “letter, symbol, drawing, banner, flag, device or object that advertises, calls attention to or indicates the existence of any person, object or service”).Read carefully, these ordinances do not seem to apply at all to, say, a “Democrats for Obama” sign or a “Stop the War in Afghanistan” sign, of any color, shape, or dimension, although it could be argued that the Obama sign “indicates the existence of” a person by that name.  (back to text)
6. See, e.g., Jamestown Zoning Ordinance, § 82-103(106) (“Any device … which displays, reproduces or includes any letter, word, name, number, model, insignia, design, device, or representation … and shall include … any representation used to … promote the interests of any person or corporation”); Middletown Zoning Ordinance, § 1202 (“Any permanent or temporary display of one or more letters, words, pictures, graphics, logos, colors, or lights visible from public ways or places … which is intended to convey a message,” with two very minor exceptions).  (back to text)
7. East Greenwich Zoning Ordinance, § 260-27(A) (emphasis added). See also, e.g., Little Compton Zoning Ordinance, § 14-10(b)(91). See also New Shoreham Zoning Ordinance, § 202(A)(169) (defining “sign” in part as “Any display of lettering, logos, colors, lights, trade flags or illuminated sign device … which … conveys a message to the public”); West Greenwich Zoning Ordinance, § 2(A) (“sign” is “any display of lettering, logos, colors, lights or illuminated neon tubes … which … conveys a message to the public”).  (back to text)
8. Westerly Zoning Ordinance, § 260-9(B).  (back to text)
9. East Greenwich Zoning Ordinance, § 260-27 (emphasis added).  (back to text)
10. See, e.g., Barrington Zoning Ordinance, § 185-98 (“Any sign not specifically permitted or exempted under this article is prohibited”); Charlestown Zoning Ordinance, § 218.67(B)(13) (“All other signs not specifically authorized by this Ordinance are prohibited”); East Greenwich Zoning Ordinance, § 260-29(A)(6) (prohibiting “All other signs which have not been expressly permitted within this article”); East Providence Zoning Ordinance, § 19-440 (“All signs that are not specifically permitted in this article … are prohibited ….”).  (back to text)
11. See, e.g., Glocester Zoning Ordinance, § 350-25 (“Except as specified in this article, it shall be unlawful to erect, replace or relocate any sign within the Town of Glocester without first obtaining a sign permit ….”); New Shoreham Zoning Ordinance, § 504(B)(1) (requiring sign permit for all signs erected, installed or replaced unless specifically exempted); Richmond Zoning Ordinance, § 18.24.040 (“Any person desiring and intending to erect, relocate or alter any sign within the town shall first apply for and obtain a sign erection application from the building official”); Warwick Zoning Ordinance, § 802 (requiring permit from building official for all signs).  (back to text)
12. See, e.g., Glocester Zoning Ordinance, § 350-33(C) (all signs in historic district require approval from historic district commission in addition to building permit).  (back to text)
13. See, e.g., Newport Zoning Ordinance, § 17.76.050 ($35.00 per sign plus $25.00 if historic district review is required); West Greenwich Zoning Ordinance, § 2(B) (unlawful to erect any sign without obtaining permit from zoning enforcement officer and paying appropriate fees).  (back to text)
14. See Lincoln Zoning Ordinance, § 260-34(C)(3) (requiring permit for all signs except temporary real estate signs,(2) temporary political signs; (3) nameplates; and (4) government signs; also requiring review by zoning enforcement officer before installing temporary signs for events by nonprofit or charitable organizations).  (back to text)
15. See West Warwick Zoning Ordinance, § 5.10.4(g)(2) (requiring all sign proposals to be evaluated for “[c]larity of design and message”).  (back to text)
16. See, e.g., Charlestown Zoning Ordinance, § 218.70 (every sign must bear permanently affixed sign permit number); South Kingstown Zoning Ordinance, § 812 (every sign must bear permanently affixed sign permit number); Warwick Zoning Ordinance, § 801 (all signs erected must display number of sign location’s address in size readable from street).  (back to text)
17. See, e.g., Middletown Zoning Ordinance, § 1209, Table 12-1 (allowing any sign required by federal, state, or local law or agency to be displayed without any other agency approval, but placing numerous restrictions on private signs); North Providence Zoning Ordinance, § 603 (in all zoning districts allowing signs “of every kind and nature erected by or on behalf of any federal, state or local government agency”); Richmond Zoning Ordinance, § 18.24.110(F) (sign restrictions not applicable to “Signs of every kind and nature erected by or on behalf of the United States of America, the state of Rhode Island and the town of Richmond”).  (back to text)
18. See, e.g., Middletown Zoning Ordinance, §§ 1209, Table 12-1; 1210 (allowing businesses to have 16-square-foot temporary signs, but allowing only six-square-foot signs for charitable/civic and political signs); Newport Zoning Ordinance, § 17.76.160(B) (allowing off-premises signs only in commercial-industrial district); Tiverton Zoning Ordinance, Art. XII, § 8(a), (c) (allowing commercial special event signs five times a year but noncommercial special event signs only twice a year).In Vono v. Lewis, 594 F.Supp.2d 189, 203 (D. R.I. 2009), the court said that sign regulations that prefer commercial speech over noncommercial speech are “presumed invalid.”  (back to text)
19. See, e.g., Jamestown Zoning Ordinance § 82-1303 (“The following signs are prohibited in all zoning districts … 2. Billboards or any sign or advertising device which advertises a use or activity not located on, or a product not sold nor manufactured on the lot upon which the sign or device is located”); Newport Zoning Ordinance, § 17.76.100 (prohibiting signs that include advertisement, identification, publicity or notice of goods, services, establishment, enterprises, activities, persons, organizations and facilities not located on premises or incidental to primary use of premises).  (back to text)
20. See Exeter Zoning Ordinance, § 6-16 (“In all zoning districts, two signs, not larger than four squarefeet (sic) in area, each advertising or indicating any local business located on a lot or parcel of land other than the premises, is (sic) permitted as a special use permit”).  (back to text)
21. See Glocester Zoning Ordinance, § 350-24 (prohibiting signs pertaining to uses incidental to principal use on premises).  (back to text)
22. See, e.g., Hopkinton Zoning Ordinance, § 27(E)(8); Middletown Zoning Ordinance, § 1208(H); Narragansett Zoning Ordinance, § 7.18(f)(9); Portsmouth Zoning Ordinance, Art. IX, B, 7; West Greenwich Zoning Ordinance, § 3(A)(20).  (back to text)
23. See, e.g., Jamestown Zoning Ordinance, § 82-1305(8) (sandwich board signs require permit from town council, which has “sole discretion” as to their “suitability”).  (back to text)
24. See, e.g., Hopkinton Zoning Ordinance, § 27(E)(11); Warren Zoning Ordinance, § 32.115(D)(2) (limiting temporary window signs to two weeks duration and not more than one-half window area).  (back to text)
25. See, e.g., Jamestown Zoning Ordinance, § 82-1305(2); West Warwick Zoning Ordinance, § 5.10.2.  (back to text)
26. See, e.g., Middletown Zoning Ordinance, § 1209, Table 12-1; Smithfield Zoning Ordinance, § 8.3(C)(7).  (back to text)
27. New Shoreham Zoning Ordinance, § 504(G)(3).  (back to text)
28. See Ackerley Communications of Massachusetts v. City of Cambridge, 135 F.3d 210, 212 (1st Cir. 1998) (noting that “noncommercial speech – for example, political discourse – is accorded the highest level of First Amendment protection”).  (back to text)
29. See, e.g., Lincoln Zoning Ordinance, § 260-40 (prohibiting political signs more than 30 days before election); Richmond Zoning Ordinance, § 18.24.100 (allowing political signs only for 30 days before and seven days after election); West Warwick Zoning Ordinance, § 5.10.2 (requiring political signs to be removed within seven days of political election or event); West Greenwich Zoning Ordinance, § 8(10) (political signs must be removed within seven days of political election or event).  (back to text)
30. See, e.g., Lincoln Zoning Ordinance, § 260-40 (limiting political signs to nine square feet, minimum height of two feet; West Warwick Zoning Ordinance, § 5.10.2 (allowed only one sign per candidate or issue without permit, each sign not to exceed eight square feet); West Greenwich Zoning Ordinance, § 8(10) (allowing “without permit” one sign per candidate or issue, limited to eight square feet).  (back to text)
31. See, e.g., Richmond Zoning Ordinance, § 18.24.100 (allowing only signs “indicating a candidate for election”); West Warwick Zoning Ordinance, § 5.10.2 (political signs defined as signs “displayed so as to advise voters of a candidate or position in a forthcoming election”); South Kingstown Zoning Ordinance, § 802(I) (political signs “must be incidental to a town, state, or federal election or referendum”); West Greenwich Zoning Ordinance, § 8(10) (allowing “political signs advising voters of a candidate or a position in a forthcoming election”).  (back to text)
32. See, e.g., North Providence Code, § 2-38 (“Election signs of any size or shape which advertise any person for political office or advertise a political party are hereby prohibited from being located or placed on private property”).  (back to text)
33. West Warwick Zoning Ordinance, § 5.10.2.  (back to text)
34. Glocester Zoning Ordinance, § 350-26(M).  (back to text)
35. See, e.g., Glocester Zoning Ordinance, § 350-26(M) (candidate for office has responsibility for removal of signs advertising his candidacy); Lincoln Zoning Ordinance, § 260-40 (candidate for political office, and president or chief officer of committee supporting or opposing ballot measure, are deemed responsible for political signs and liable to pay any fees or costs for removal of illegal signs).  (back to text)
36. See, e.g., Jamestown Zoning Ordinance, § 82-1302(9) (church, school or other public use may have one sign of 12 square feet or less); Richmond Zoning Ordinance, § 18.24.050(A)(2) (“One sign, not larger than twelve square feet in area, displaying the name, activity or service of a school, church or other public or semipublic use”).  (back to text)
37. See, e.g., Little Compton Zoning Ordinance, § 14-7.1(c) (allowing, in residential zones, sign or announcement board limited to 12 square feet in area and eight feet in height, pertaining to permitted religious, institutional or government use); Richmond Zoning Ordinance, § 18.24.110(B) (allowing church bulletin boards “not exceeding six square feet”); West Warwick Zoning Ordinance, § 5.10.2 (church bulletin boards limited to five square feet).  (back to text)
38. See, e.g., Warwick Zoning Ordinance, § 804 (prohibiting bulletin boards in all zoning districts).  (back to text)
39. See, e.g., Narragansett Zoning Ordinance, § 7.18(e)(13) (signs celebrating “recognized secular or religious holiday” may not be erected more than 30 days before holiday and must be removed within ten days after holiday); Richmond Zoning Ordinance, § 18.24.110(M) (limiting “exterior decorating for holiday or patriotic purposes” to one month period); South Kingstown Zoning Ordinance, § 803(D) (allowing string lights in connection with recognized legal holiday for not more than 30 days).  (back to text)
40. See Hopkinton Zoning Ordinance, § 27(K). See also New Shoreham Zoning Ordinance, § 504(B)(7) (letters on signs limited to 12 inches in height and in recognized printer’s typeface, unless otherwise approved by historic district commission).  (back to text)
41. See, e.g., Glocester Zoning Ordinance, § 350-33(D) (requiring removal or full compliance within five years); Scituate Zoning Ordinance, Art. IV, § 14 (seven years); Warren Zoning Ordinance, § 32.116(B) (five years). These provisions violate R.I.G.L. § 45-24-39(b) and the rule announced in American Oil Co. v. City of Warwick, 116 R.I. 31, 351 A.2d 577 (1976) (zoning amendment requiring removal of signs and billboards within eight years from issuance of permit therefor violated enabling act provision protecting nonconforming uses).  (back to text)
42. See, e.g., Newport Zoning Ordinance, § 17.76.070 (change to name of business or content of sign causes loss of grandfathered nonconforming status); New Shoreham Zoning Ordinance, § 504(D) (prohibiting the continuance of nonconforming signs if it is reworded, redesigned or altered in any way, including changing the sign’s logo).  (back to text)
43. U.S. Const., Amend. I.  (back to text)
44. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).  (back to text)
45. Space limitations preclude a complete analysis of constitutional law as applied to signs. The leading Supreme Court case, on which the cases cited in this article relied, is Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981).  (back to text)
46. Ackerley Communications of Massachusetts v. City of Cambridge, 88 F.3d 33, 37-39 (1st Cir. 1996). In a subsequent decision the Court of Appeals enjoined the city from requiring the billboard company to remove any billboards that violated the ordinance. Ackerley Communications of Massachusetts v. City of Cambridge, 135 F.3d 210, 217 (1st Cir. 1998).  (back to text)
47. Ackerley Communications of Massachusetts v. City of Cambridge, 88 F.3d 33, 37 (1st Cir. 1996) (stating that by distinguishing between on-site and off-site signs the ordinance “has the effect of disadvantaging the category of noncommercial speech that is probably the most highly protected: the expression of ideas”).  (back to text)
48. R.I.G.L. § 24-10.1-1 et seq. This statute was adopted to comply with 23 U.S.C. § 131, also known as the Federal Highway Beautification Act.  (back to text)
49. R.I.G.L. § 24-10.1-3(3).  (back to text)
50. Vono v. Lewis, 594 F.Supp.2d 189 (D. R.I. 2009).  (back to text)
51. Vono v. Lewis, 594 F.Supp.2d 189, 198 (D. R.I. 2009).  (back to text)
52. Vono v. Lewis, 594 F.Supp.2d 189, 202 (D. R.I. 2009) (stating that the statute was not content-neutral because it “valu[ed] certain types of noncommercial speech (on-site) over other types (off-site)”). To show the pernicious nature of off-premises sign prohibitions, the court gave the following example:
    

    The owner of a music store … could not replace her “Drums For Sale” sign with a “Cut Property Taxes Now!” message unless she conducted some tax-related activity in the music store. So, while the drum seller, under Rhode Island’s scheme, could not advertise cars she also would be prohibited from expressing her strongly held views to limit taxes, to stop the war, support a candidate, or root for the Red Sox. Id. at 203-204.  (back to text)

53. A full discussion of the validity of dimensional and location requirements for signs is beyond the scope of this article. However, it seems obvious that many of the restrictions discussed in this article’s survey of Rhode Island sign ordinances are overbroad and hence unconstitutional, such as those defining a “sign” as almost anything that communicates a message or attracts attention; requiring government permission to erect any sign in the community; limiting the number of political or religious signs that may be erected; prohibiting all portable signs and limiting window signs, at least in residential areas; limiting holiday signs to “recognized holidays” with strict duration requirements; and so on.  (back to text)
54. Scituate Zoning Ordinance, Art. I, § 5(B); Art. VII.  (back to text)
55. Scituate Zoning Ordinance, Art. IV, § 14.  (back to text)
56. Scituate does, however, permit a church to have an “announcement board” of up to 12 square feet, provided the zoning board grants a special-use permit for it.  (back to text)
57. The Town of Coventry Zoning Ordinance has a typical purpose provision: “The purpose of this Article is to minimize traffic hazards, protect property values, create a more attractive economic and business climate, enhance and protect the physical appearance of the community and preserve the scenic and natural beauty of designated areas.” Coventry Zoning Ordinance, § 1502.  (back to text)
58. One possible exception is the North Smithfield sign ordinance, which states at the end of its purpose section that the ordinance does “not in any way regulat[e] the content of such signs.” North Smithfield Zoning Ordinance, § 6.17.1. Unfortunately other sections in the ordinance, such as a total ban on sandwich-board signs, belie that implied claim to protect free speech in signs.  (back to text)