The following letter was published in this week’s issue of the Gazette.
To the editor:
All of us should be thankful for the decision of the Croton Board of Trustees to allow limited free speech. At the April 5 meeting, the Village Manager explained that she had decided “to put many of the residents in compliance” since after going around and seeing resident signs “they’re actually illegal.”
I may be showing my age, but when I went to public school we were taught that our free speech rights were protected by the US Constitution, not by the Village Manager of Croton-on-Hudson. The Village Manager and Board of Trustees often treat Croton as their fiefdom, but even they are subject to the Constitution. It is difficult for me to grasp the view that it is up to the Village Manager to determine how residents can “communicate their opinions legally.”
Ostensibly this action is being taken to rectify “unintended consequences” of the village law regarding signs placed on the municipal right-of-way. That is absolutely false. Changing the code section regulating signs on public land or right of way has no effect on the code section regulating signs on private home lawns. A municipality has broad discretion in regulating signs placed in the right-of-way due to traffic safety considerations. Signs on public property may also be prohibited.
Contrary to what the Village Manager and Board of Trustees believe, there is a huge difference between regulating use of public property versus regulating speech on private property. To his credit Mr. Pugh attempted to point out the distinction at the April 5 session.
The existing Croton Village Code is of dubious constitutionality when it comes to free speech. It treats speech differently based on who the speaker is and what they are attempting to communicate. In itself, that would likely render any enforcement action liable to strict scrutiny in a court proceeding. Even if the code is found to be facially content-neutral, enforcement of a law restraining speech would be subject to intermediate scrutiny and that is still tough.
I am opposed on principle to restraining speech, but if the Croton Board of Trustees is determined to do so, it should establish a record demonstrating the specific criteria necessary to survive a constitutional challenge.
Signs are speech. Their sole purpose is to communicate. A law restricting signs is inherently restrictive of speech, and therefore implicates the First Amendment.
As a general rule, municipalities may restrict signage for two purposes: traffic safety and aesthetics. What municipalities may not do is favor certain speakers or certain types of speech.
Courts are particularly prickly about political speech, and the existing code section 230-44.K (2)(c) would probably not even get past the Village Court, let alone the 2d Circuit. This is not news: back in February 2017 Croton Village Attorney Staudt noted that election signs were “considered the purest form of speech” and Croton cannot force them to be taken down.
The NYS General Counsel warns municipalities that laws regulating noncommercial signs must meet three criteria: Content-neutral, narrowly-tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.
The General Counsel explicitly says not to have a law such as Croton’s 230-44.K(2)(c). The Village Board of Trustees knows this. Croton’s ruling clique does not care what the Constitution says, let alone some lawyer sitting in a government office in Albany.
Our Board of Trustees feels that laws apply to the little people. When Croton starts ticketing homeowners, we taxpayers may be in for a very expensive lesson in First Amendment jurisprudence. It is not just election signs that are subject to the unconstitutional restraints of Croton law.
Want to speak out on abortion by putting up a banner? In Croton your First Amendment rights would differ depending on whether you were Joe Homeowner or Planned Parenthood. Are you a business and want to advertise your product? If you sell widgets, you can not use removable letters on your sign. If you sell gasoline, you can use removable letters. Do you own a vacant lot? Depending on your zoning designation, in Croton you might not be able to speak at all—no signs allowed.
“The existing Croton Village Code is of dubious constitutionality when it comes to free speech. It treats speech differently based on who the speaker is and what they are attempting to communicate. . . . I am opposed on principle to restraining speech, but if the Croton Board of Trustees is determined to do so, it should establish a record demonstrating the specific criteria necessary to survive a constitutional challenge. Signs are speech. Their sole purpose is to communicate. A law restricting signs is inherently restrictive of speech, and therefore implicates the First Amendment.”
It is not easy to speak in Croton unless you want to risk a code violation and a trip to Village Court. The Board of Trustees itself admitted that as recently as April 1, most residents wishing to exercise their First Amendment rights face “the onerous process of obtaining a sign permit.” The only reason this has not been litigated is because Croton has followed a policy of benign neglect when it comes to political signs.
Now that the Board of Trustees admits that residents face an “onerous process,” can we talk about making that process less onerous? The various restrictions on speech in Croton do need to be reviewed. The Board of Trustees does need to make appropriate modifications to the code. That process needs to be done with deliberation and not in the customary slipshod manner.
A logical starting point would be to determine what governmental interest is being addressed by the legislation and then follow a similar analysis to what a court would follow when the law is challenged. But that is probably too much to ask of the Board of Trustees.
So perhaps they could start by clarifying who is covered by the amendment to 230.44.P(1). The statutory language says it applies to “lots used for residential purposes” but provides no definition of what that term means. The code speaks of “private residential purposes” in section 67 and “residential purposes” in section 66. Neither of those code sections actually give a definition, nor would they necessarily define the scope of section 230’s applicability.
The vague language of the proposed amendment to code section 230-44 is in contrast to the language of the accompanying Coastal Assessment Form specifying six specific zoning classifications where the amended law would apply. The proposed code would look to the use of the lot, the CAF says the code looks to the zoning classification of the lot. By the language of the amendment, it would appear that the Board of Trustees intends the law to apply more broadly than in the CAF, but it may simply be sloppy drafting.
Croton tradition is to have decisions made behind the scenes and then have a pro forma performance at a Board of Trustees or village committee meeting. That is distasteful but not normally an issue to anyone other than fans of good government.
When it comes to government action touching on Constitutional rights, the customary Croton secrecy is not acceptable. It may be that there is a compelling government interest in having three signs instead of two or four, but the Village Manager’s statement “I thought three was reasonable” is not a proper foundation for a deliberative process. The rationale given at the April 5 meeting was that a resident could put up one election sign, one Black Lives Matter sign, and one tag sale sign.
Aesthetic concerns are a valid governmental interest. Thirty signs on a typical Harmon lot are a proper subject of statutory curbs on speech, and a one sign limit is unconstitutional. Somewhere along that continuum we cross a line, but where? That number is not fixed in case law or the Constitution, but it is certainly not a decision to be made without establishing a record. In fact for many years one of our Croton political leaders living on a corner lot placed three signs fronting one street and three signs fronting the cross street. Nobody was bothered then, but perhaps those days have passed.
As a restraint on free speech, the proposed code amendment should be as narrowly tailored as possible. It must be facially neutral. It also should avoid having the result of favoring or disfavoring particular viewpoints.
The proposed requirement for a wire H-stake is facially neutral as to viewpoint. Most Croton residents probably had no reaction when they read that. But not all Croton residents. I missed the importance of the wire H-stake requirement, but residents supporting Trump immediately recognized that such a requirement means that they will have their signs stolen till they give up and stop expressing their speech. Many of us live in our own viewpoint bubble and it is quite probable that the Board of Trustees did not recognize (just as I did not recognize) the significance of the H-stake requirement. If Croton is truly serious about revising the law to encourage free speech, the Board of Trustees should seek input from those with minority viewpoints.
I am hardly a fan of Trump, but I am a big fan of free speech. I don’t know of any Croton resident supporting Biden or BLM who had to buy a home surveillance system as a result of them having their property stolen and vandalized in the night. I do know of two Croton homeowners who had to buy surveillance systems for protection after their overt support of Trump led to theft, vandalism, and even drive-by harassment.
Croton is lacking in diversity of viewpoint, and those having a minority political viewpoint tend to keep quiet. Many of us in Croton don’t think about that, including myself: I supported Buttigieg and Sanders, and the only time I put out a Presidential lawn sign was for Obama ’08.
In her brief discussion, Ms. King twice mentioned Black Lives Matter as an example of the free speech which was going to benefit as a result of the proposed code amendments. I am a firm supporter of the right to speak out in support of BLM. Support of BLM is hardly controversial in our area. The Village of Croton waived normal permit and insurance requirements when BLM supporters held a rally in Vassallo Park, and plenty of BLM signs are proudly displayed in our area. The Town of Greenburgh is even putting up at taxpayer expense 4 BLM signs, 5 banners, and holding an essay contest.
The test of tolerance and inclusion in Croton is not how solicitous we are of causes enjoying majority support, such as BLM. The test of our dedication to diversity of viewpoint is in how tolerant we are of minority viewpoints—even those we find repugnant. The purpose of the First Amendment is to ensure the speech rights of residents holding unpopular viewpoints.
For too long, Croton’s government has made free speech illegal. I give credit to the Village Manager for publicizing this issue and acknowledging the “onerous process” facing residents. That being said, our First Amendment rights should not depend on the grace and whim of the Village Manager and Board of Trustees. Parts of Croton’s law on signage go back to the 1960s. A lot has changed since then. It is time to do a complete overhaul of the code provisions regarding signage.
Much as I appreciate the Village Manager’s newfound appreciation of free speech, I would prefer to rely on the Constitution as the basis for protecting free speech: the laws of Croton should be revised accordingly.
Paul Steinberg