The City allows up to three temporary signs, no larger than three square feet on any residential lot. In 2015 the State of Kansas approved and signed HB 2183 (now KSA 25-2711), legislation that prohibits cities and counties from regulating or barring placement of political signs on private property or on the property's unpaved right-of-way for city and county roads. Local governments are also banned from regulating the number of signs placed during election season.
When approved, our City attorney at the time was of the opinion that this legislation from the state was unconstitutional as it regulates speech based on content. In fact, we had recently updated our sign ordinance to strip any content-based language from the code, including a section on political signs. Per a 2015 Supreme Court ruling, Reed v. Town of Gilbert, stated that the Town of Gilbert's sign code was unconstitutional as it regulated various categories of signs differently based on the information they conveyed (a summary is attached). Due to this, it was the opinion of the City Attorney and Governing Body at the time, that HB 2183 would not survive strict scrutiny under the constitution and our existing content-neutral sign code remained in place.
Since that time, the Kansas Attorney General issued an opinion in 2018 that the legislation in HB 2183 was constitutional. In summary he stated the following (full opinion is attached).
On June 18, 2015, the United States Supreme Court determined in Reed that the Town’s sign code established content based restrictions on speech that could not withstand strict scrutiny. Because K.S.A. 2018 Supp. 25-2711 does not burden or restrict the exercise of speech, whether commercial or noncommercial, it is not subject to the same review as the sign code in Reed. K.S.A. 2018 Supp. 25- 2711 does not violate the First and Fourteenth Amendments to the United States Constitution.
As such, it is the opinion of the current City Attorney, that the City consider updating its sign code to reflect the state law. This would entail allowing an unlimited number of political signs 45 days prior to and 2 days following any election and allowing those signs to be placed in the unpaved ROW areas throughout the City.
In February of this year, the House Local Government Committee heard testimony considering the repeal of KSA 25-2711. The League of Kansas Municipalities supported this repeal citing the following points.
- The United States Supreme Court held in Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) that sign restrictions that make distinctions in reference to the sign’s message are content based and are unconstitutional.
- Generally speaking, if you have to ask what the sign says in order to enforce the law, the law is a content-based restriction in violation of the First Amendment.
- To enforce K.S.A. 25-2711, local authorities must review the content of a sign to determine if it qualifies for the protection from local sign regulations. On its face the statute protects specific signs based on the message. This would appear to be in violation of the Supreme Court ruling in Reed.
- The only way for a city to comply with K.S.A. 25-2711 and the ruling in Reed is to allow all signs to be placed in the public right-of-way. This would result in not only an aesthetic issue for many cities but a safety issue as well.
The bill (HB 2135), however, died in committee. Attached you will find a draft of an ordinance for consideration.