Filed: December 16, 1992
Deborah L. McHenry
Ranson, Ranson & McHenry
Charleston, West Virginia
Attorney for the Petitioner
Charles O. Lorensen
Charleston, West Virginia
Attorney for the Respondent
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "To minimize the potential 'chilling effect' of
regulations governing the exercise of rights guaranteed under
constitutional free speech provisions, those regulations must be
both narrowly and clearly drawn." Syllabus point 2, West Virginia
Citizens Action Group v. Daley, 174 W.Va. 299, 324 S.E.2d 713
2. In order to control the use of noncommercial
political or candidate signs on private property, the government
must (1) have a legitimate interest in banning the speech; (2) the
restrictions which regulate the time, place, and manner of the
speech must go no further than necessary to achieve those goals;
and (3) the regulation may not burden a substantial portion of
speech in a manner that does not advance its goals.
3. "A writ of mandamus will not issue unless three elements coexist -- (1) a clear right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367(1969).
This petition for a writ of mandamus was filed by Sandy
Fisher, a registered voter in Kanawha County, West Virginia. She
is politically active in grass roots political, consumer, and
citizens issues and lives in the newly-created Kanawha County
minority-influence legislative district. In the May 12, 1992,
primary election, she supported a minority candidate for the West
Virginia Legislature. The petitioner attempted to promote her
candidate by placing an 8 1/2" x 11" black and white candidate
support sign in the front window of her home and in her front yard.
On February 7, 1992, the Charleston City Manager Curt
Voth sent a letter to candidates to "remind" them of the zoning
ordinances "as they apply to placement of political signs in
residential areas and public rights of way in our beautiful city .
. . . These signs can sometimes be damaging to trees, and often
create an unsightly appearance. Under the City of Charleston
zoning law, political signs are considered to be 'off-premise'
signs since they contain messages unrelated to services where the
signs may be located. They are not permitted in residential areas
or the downtown district."
In April, 1992, the appellant attempted to place
candidate signs in the window of her home and in her yard. She was
advised by Al Carey, the Zoning Inspector for the City of
Charleston, that she could not put the signs in her home or yard.
On April 7, 1992, the petitioner received material from the city
manager advising her how to appeal for a variance so that she could
put up her candidate support signs. Thus, on April 14, 1992, she
filed an application to the Board of Zoning Appeals of the City of
Charleston. In the application the petitioner stated that she
"wished to put a sign in my window and in my yard that would state
'Vote for Norman Ferguson for House of Delegates.'"
The Board of Zoning Appeals scheduled a hearing on her
application for May 28, 1992. Unfortunately, this was sixteen days
after the primary election, and her candidate had lost the
election. At the hearing, the petitioner explained that the City
had violated her right to freedom of expression of her political
views by preventing her from putting these signs in her yard and
window. The Municipal Beautification Commission opposed her
application, and on May 29, 1992, the Board of Zoning Appeals
denied her application based upon Zoning Ordinances §§ 18-1-1 and
21-10. The Board ruled that "the applicant has failed to show any
facts or circumstances unique to the subject property which would
justify the granting of the variance requested." It is from this
denial that the petitioner files this petition for a writ of
The petitioner contends that the City ordinances which
prohibit the use of political signs on private property violate her
First Amendment right to free speech and are extremely vague in
that the ordinances do not provide sufficient notice of the
activity proscribed or include precise definitions of operative
terms. Thus, the petitioner argues that the ordinance allows
authorities to exercise excessive discretion in enforcing them, as
evidenced "by the fact that a number of signs could be seen
throughout the city prior to the primary and the fact that upon
information and belief various city officials told citizens that
they really didn't enforce the regulation the last two weeks before
the election." However, the petitioner offered no proof of that
allegation. The respondents counter that the City has reasonably
limited the use of printed material based upon their legitimate
interests in safety and aesthetics, and that the restrictions are
reasonable time, place, and manner rules.See footnote 1
The intent behind the prohibition of signs within the City of Charleston is found in Zoning Ordinance § 21-1:
It is recognized that signs are a legitimate business land use and have a right to exist within the City of Charleston. This article is to regulate signs in such a manner as to provide for the reasonable and orderly display of permitted signs. It is the intent of the sign regulations to:
(a) Provide for the size, location,
construction, and manner of display of signs;
(b) Permit such signs that will not, by
reason of their size, location, or manner of
display, endanger life or limb, confuse
traffic, obstruct vision, or otherwise
endanger the public morals, safety or welfare;
(c) Prevent signs from causing an
annoyance or disturbance; and
(d) Protect or improve aesthetic quality
by regulating the placement and size of signs.
An "off-premise" sign is defined as "[a] sign which contains a message unrelated to a business or profession conducted or to a commodity, service or entertainment sold or offered upon the premise where such sign is located." Zoning Ordinance § 2-2.See footnote 2 An "on-premise" sign contains a message which is related to a business or profession or to a commodity, service, or entertainment sold or offered upon the premise where the sign is located. On-premise signs are allowed in all districts subject to general limitations on size, set-off, placement, and type. Off-premise signs are permitted only in designated districts, which do not include residential districts.See footnote 3 Zoning Ordinance § 21-10(c).
Consequently, under Charleston's zoning ordinances, Ms. Fisher
would be permitted to advertise a home business, but not her
political views, unless she was the candidate whose signs she
wished to display.See footnote 4
The specific issue of restrictions on political speech
has not been addressed by this Court prior to this case. However,
we have ruled that political speech is "at the core of the interest
protected by constitutional free speech guarantees." West Virginia
Citizens Action Group v. Daley, 174 W.Va. 299, 324 S.E.2d 713
(1984). Citing Roth v. United States, 354 U.S. 476, 484, 77 S.Ct.
1304, 1 L.Ed.2d 1498 (1957), Daley recognizes that "[t]he
protection given speech and press was fashioned to assure
unfettered interchange of ideas for the bringing about of political
and social changes desired by the people." Id. at 718 (citations
omitted.) In Daley, the Court provides limitations on governmental
regulation of the exercise of the free speech guarantee: "To
minimize the potential 'chilling effect' of regulations governing
the exercise of rights guaranteed under constitutional free speech
provisions, those regulations must be both narrowly and clearly
drawn." Id. at syl. pt. 2.
The United States Supreme Court has discussed the issue
of governmental entities controlling speech, although the precise
issue present in this case has not been addressed. The facts
before us today are similar, although not identical, to those found
in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 503, 101
S.Ct. 2882, 69 L.Ed.2d 800 (1981).See footnote 5 Metromedia involved the City
of San Diego's attempt to prohibit "outdoor advertising display
signs," narrowly defined by the California Supreme Court as a
"rigidly assembled sign, display or device, permanently affixed to
the ground or permanently attached to a building or other
inherently permanent structure constituting, or used for the
display of, a commercial or other advertisement to the public."
Metromedia v. City of San Diego, 610 P.2d 407, 410, n.2 (Ca.
1980).See footnote 6 Exempted from the prohibition was, among other types of
signs, "temporary political campaign signs." Metromedia, 453 U.S.
In ruling that off site commercial billboards could be
prohibited while on-site commercial billboards were permitted, the
Court stated that "[i]t does not follow, however, that San Diego's
general ban on signs carrying noncommercial advertising is also
valid under the First and Fourteenth Amendments. The fact that the
City may value commercial messages relating to onsite goods and
services more than it values commercial communications relating to
offsite goods and services does not justify prohibiting an occupant
from displaying its own ideas or those of others." Id. at 512-13.
In Metromedia, the United States Supreme Court indicated
that "insofar as the city tolerates billboards at all, it cannot
choose to limit their content to commercial messages; the city may
not conclude that the communication of commercial information
concerning goods and services connected with a particular site is
of greater value than the communication of noncommercial messages."
Id. at 513.
Although the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests . . . . With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse: "To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth." Consolidated Edison Co., 447 U.S., at 538, 65 L.Ed.2d 319, 100 S.Ct. 2326. Because some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncommercial messages throughout those zones.
Id. at 514. Thus, the Court concluded that if a city permits
commercial advertising, then it cannot preclude noncommercial
In the case now before us, the City of Charleston shows
a preference for commercial speech by generally allowing commercial
signs, but prohibiting most noncommercial signs. Applying
Metromedia's findings to these facts, it is clear that insofar as
the City of Charleston allows commercial signs, such as on-site
advertising, it cannot forbid noncommercial speech, such as
political signs. As noted in Metromedia, the City "may not choose
the appropriate subjects for public discourse."See footnote 7 Id.
Consequently, the City of Charleston cannot forbid political
candidate signs while permitting commercial advertising.
We acknowledge that there is a distinction between the
San Diego billboard regulation and the Charleston ordinances. The
Charleston zoning ordinances limit the commercial signs to on-site
commercial advertising signs and does permit candidate signs at the
home of the candidate whose sign is displayed. The San Diego
ordinance addressed billboards located in areas quite different
from the largely residential area at issue in this case.
Nonetheless, we believe the general premise of Metromedia is
applicable to our case. It is improper for a city to allow on-site
commercial signs while forbidding what amounts to on-site
noncommercial signs: the political thoughts of the owner of that
We conclude that the City unconstitutionally limited a
citizen's right to express noncommercial political speech by
forbidding all political or candidate signs. This does not mean,
however, that the City cannot provide some regulation of the
political or candidate signs. Thus, we next discuss what limits
the City can place on the right of a citizen to display
noncommercial political or candidate signs in her yard or home.
In Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct. 146,
84 L.Ed. 155 (1939), the United States Supreme Court first
discussed the issue of a governmental prohibition on expression.
In Schneider, the Supreme Court invalidated a restriction on door-to-door and street distribution of circulars, where valid
governmental purposes could be achieved through less restrictive
alternatives. The Court concluded that the purpose of keeping the
streets clear was insufficient to justify an ordinance which would
prohibit all public distribution of circulars.See footnote 8 As a method of
determining what speech could be abridged in this manner, the Court
adopted a balancing approach and found that the state's purpose in
maintaining reasonably clean streets at low cost could be achieved
by measures less drastic than a total ban on all handbills.See footnote 9 Id.
More recently, in Ward v. Rock Against Racism, 491 U.S.
781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), the United States
Supreme Court stated that the primary consideration in determining
whether a governmental regulation on speech is proper depends upon
several factors: "A regulation that serves purposes unrelated to
the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others."
Id. at 791 (citations omitted). A government's restrictions on the
exercise of First Amendment free speech rights will be sustained if
the regulations "'are justified without reference to the content of
the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample
alternative channels for communication of the information.' Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 293, 82
L.Ed.2d 221, 104 S.Ct. 3065 (1984)." Id.
In the case now before us, we agree with the respondents'
assertions that the ordinance is generally content neutral. This
is illustrated by the numerous other types of signs the ordinance
forbids in addition to political or candidate signs, although there
are unsubstantiated allegations of unequal application. A narrower
issue exists, however, of whether the ordinance is "narrowly
tailored" to serve the governmental interest in preserving the
appearance and safety of the neighborhoods. "[T]he requirement of
narrow tailoring is satisfied 'so long as the . . . regulation
promotes a substantial government interest that would be achieved
less effectively absent the regulation.'" Id. at 799 (citations
omitted). The regulation "need not be the least restrictive or
least intrusive means of doing so." Id. at 798.See footnote 10
We believe that the rule found in Schneider, discussed
supra, is implicit in the requirement of Ward v. Rock Against
Racism. Thus, in order to control the use of noncommercial
political or candidate signs on private property, the government
must (1) have a legitimate, significant interest in the regulation;
(2) the restrictions which regulate the time, place, and manner of
the speech must be narrowly tailored to achieve those goals and go
no further than necessary to achieve the government's goal; (3) the
regulation may not burden a substantial portion of speech in a
manner that does not advance its goals; and (4) the regulation must
leave open ample alternative channels for communication.See footnote 11
While we agree that there is a legitimate and significant governmental interest in aesthetics and preserving the quality of life, the current City ordinance is much too broad and places a substantial burden on the regulation of speech in a manner that does not serve to promote its goals. While Rock Against Racism does not require that the ordinance be the least restrictive alternative, the Charleston ordinance is overbroad. As it is now written, the ordinance leaves open few alternative channels for communication of the political information. With few resources, the petitioner's opportunity to express her views is very limited. In this era of multimillion dollar campaigns for political office, the right of an individual to express herself at a reasonable cost seems even more vital. That right takes on a more critical element when the individual attempts to do so from her own property.See footnote 12
Nor do we believe Metromedia grants the homeowner a year-round right to place political signs in her yard or home, as the
respondents contend. As we noted above, Metromedia dealt
specifically with billboards, which were available year round for
commercial use for those who wished to pay for the right to
advertise. Nothing in Metromedia supports the right to the
unlimited use of political signs. In fact, the Court mentions,
albeit briefly, that temporary candidate and political signs were
permitted without finding that the City of San Diego erred in
allowing the signs only temporarily. Metromedia, 453 U.S. at 514.
Although the Court in Metromedia rejected the appellee's suggestion
that the San Diego ordinance was appropriately characterized as a
"reasonable time, place and manner" restriction, it explained that
such restrictions are permissible under certain circumstances:
The ordinance does not generally ban billboard advertising as an unacceptable "manner" of communicating information or ideas; rather, it permits various kinds of signs. Signs that are banned are banned everywhere and at all times. We have observed that time, place, and manner restrictions are permissible if "they are justified without reference to the content of the regulated speech, . . . survey significant governmental interests, and . . . leave open ample alternative channels for communication of the information." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., at 771, 48 L.Ed.2d 346, 96 S.Ct. 1817.
Id. at 515-16. Unlike Metromedia, the facts in the present case
involve largely residential areas which are not traditionally
blanketed with signs and advertising, and thus, are inherently
different from the locales in which billboards are generally found.
There is no question that the City is entitled to adopt
a zoning ordinance which promotes their interest in land use
planning. See W.Va. Code § 8-24-1 et seq. (1990). Further, we
agree that the respondent has a substantial interest in protecting
and preserving the residential quality within the City by reducing
the clutter created by signs and promoting safety on residential
streets by limiting these signs. However, the zoning ordinance in
question is overbroad: A city cannot forbid noncommercial
advertising while allowing commercial advertising, although some
regulation is permitted.
We believe that permitting the political signs on a
temporary basis, as well as regulating size, set back, type, and
number, would be considered a reasonable time, place, and manner
restriction. The temporary nature of the signs is justified
without reference to the content of the sign and serves a
significant and legitimate governmental interest in maintaining
order and safety in residential and downtown areas. Although the
signs are temporary, they are permitted at the time they are most
necessary for the expression of political views. Once the
elections are over, there are other avenues which leave open ample
alternative channels for communication of the information in
Given the time, place, and manner restrictions discussed
in Ward and Schneider, we believe the zoning ordinance would be
both reasonable and narrowly tailored if it permitted the placement
of temporary political or candidate signs for a specified period of
time before primary and general elections, with the requirement
that all signs must be removed within a specified period after the
polls close. Further, the number of signs permitted could be
limited, within reason, as well as the size, type, placement, and
set back, for reasons of safety, public morals, and aesthetics. We
suggest that the specifics regarding the sign type, size, and set
back coordinate with Zoning Ordinance 21-7(a), which sets out the
requirements for on-premise candidate signs.
In order for a petition for a writ of mandamus to
succeed, the petitioner must show three things: "(1) a clear right
in the petitioner to the relief sought; (2) a clear legal duty on
the part of respondent to do the thing which the petitioner seeks
to compel; and (3) the absence of another adequate remedy." Syl.
pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170
S.E.2d 367 (1969). Ms. Fisher has demonstrated a clear right to
her petition requesting that the zoning ordinance be declared
unconstitutional, a clear legal duty on the part of the Zoning
Board to allow the temporary candidate signs, and no other adequate
remedy at law.
Accordingly, we grant the petition for a writ of mandamus
and rule that the City of Charleston Zoning Ordinances §§ 18-1-1
and 21-10 are unconstitutionally overbroad in forbidding temporary
candidate or political signs, and that the Zoning Board of Appeals
erred in denying the petitioner's application. It is up to the
Charleston City Council to rewrite a narrowly tailored zoning
ordinance dealing with temporary political or candidate signs, in
accordance with the provisions set forth in this opinion.
Footnote: 1Section 18-1.1 of the Charleston Zoning Ordinance provides the general prohibition against signs, handbills, posters, and other advertisements and notices:
No person shall stick, print, stamp,
attach, hang or suspend upon any public
building, traffic sign, street marker or upon
any pole or upon any telephone, telegraph or
other poles belonging to the city or to
electric, telephone, telegraph or other
companies, or upon any street or sidewalk,
pavement or any other public place any
printed, written, painted or other
advertisement, bill, notice, political poster
or advertisement or any other sign or poster.
No papers, handbills, cards, circulars, political advertisements or advertising matter of any kind shall be thrown, pushed, cast, deposited, dropped, scattered, distributed or left in or upon any street, sidewalk, or other public place, or upon any
vacant lot or premise within the city, if it
is likely that the material might be
scattered by the wind upon the streets or
public places within the city; provided, that
the provisions of this section shall not
prevent the delivering of newspapers within
No structure of any kind to be used as a
sign or advertising of any sort shall be
built, placed, erected, hung or left in or
upon any street, sidewalk or other public
place, except such as may lawfully be allowed
under the laws of the city.
Section 24-6 provides penalties for violations of these
ordinances. A violation is a misdemeanor, carrying a fine of not
more than $300.00 nor less than $10.00. Each day of violation
constitutes a separate offense.
Footnote: 2City of Charleston ordinance § 21-10 is entitled Off-Premise Sign Regulations, and § 18-1-1 is entitled Advertisements, Handbills, Signs, Etc. Section 21-10 provides:
(a) Off-premise signs shall be permitted
in the following districts:
(1) C-6 Community Commercial District
and C-10 General Commercial District.
(2) I-2 Light Industrial District.
(3) I-4 Heavy Industrial District.
(b) Off-premise signs in a SPI-UR
District shall be governed by the Council
approved plans for such a district.
(c) If not expressly permitted in (a) or (b) above, off-premise signs shall be prohibited.
Footnote: 3Zoning Ordinance § 21-7(a) permits on-premise signs:
(1) One non-illuminated nameplate sign is permitted on either a wall or ground pole, identifying the owner or occupant of a residential building, provided the
surface area does not exceed one square
foot and the sign is set back at least
three feet from the front property line.
The maximum height of the sign shall be
(2) One sign, not to exceed 12 square feet
in area, shall be permitted for the
following uses where permitted: Church,
school, museum, other community
facility, other special permit use,
planned unit development, group housing
development, subdivision, or
nonresidential principal use. Such sign
shall be solely for the purpose of
identifying the use and its services or
activities and may be illuminated (no
exposed neon). Such sign shall not be
closer than ten feet to the curb nor
more than ten feet in height.
(3) A home occupation may be identified by one wall sign not exceeding a total area of two square feet, affixed to the building, and not projecting more than one foot beyond the building. Illumination of such sign shall be either by means of white non-flashing enclosed light design or by indirect lighting from a shielded source.
Footnote: 4Candidate signs displayed at the home of that particular candidate are considered on-premise and are permitted. According to the City, Zoning Ordinance 21-7(a) controls the maximum size, set back, and sign type for on-site candidate signs.
Footnote: 5In Metromedia, the United States Supreme Court ruled that weighing First Amendment interests against the public interest served by a zoning ordinance which restricted signs "requires a particularized inquiry into the nature of the conflicting interests at stake here, beginning with a precise appraisal of the character of the ordinance as it affects communication." 453 U.S. at 503.
Footnote: 6In footnote 2, the United States Supreme Court noted that the California Supreme Court purposefully adopted a narrow definition designed to focus on billboards rather than other signs like "a small sign placed in one's front yard proclaiming a political or religious message." 453 U.S. at 494, n.2.
Footnote: 7Like the United States Supreme Court in Metromedia, we do not address the issue of the effect of a total ban on all advertising, both commercial and noncommercial. Metromedia, 453 U.S. at 515, n.20.
Footnote: 8See also Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), in which the Court invalidated a state ordinance which prohibited the distribution of circulars not carrying the name and address of the person who prepared, distributed, or sponsored it.
Footnote: 9See generally Note, "Less Drastic Means and the First Amendment", 78 Yale Law Journal 464 (1969).
Footnote: 10In City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), the Supreme Court quoted Metromedia, stating that "the city's interest in attempting to preserve [or improve] the quality of urban life is one that must be accorded high respect." Id. at 807 (citations omitted).
Footnote: 11In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), the United States Supreme Court adopted a four part test for determining the validity of governmental regulation of commercial speech, which is generally accorded "a lesser protection . . . than . . . other constitutionally guaranteed expression." Id. at 566, 563.
Footnote: 12See also Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), and Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), for cases in which a governmental agency attempted to prohibit speech, from a certain forum, relating to political campaigns while permitting other types of speech. Although the Court upheld the prohibition on the expression, Metromedia noted that the decisions were based upon the particular facts of those cases. Metromedia, 453 U.S. at 514, n.19. Lehman involved an attempt to place political advertisements on public transit vehicles. Greer discussed the right of political candidates to distribute literature or make speeches on a military post where military regulations prohibited such actions without prior approval.