Your yard, your rights: Lawn signs and the First Amendment

Whether they’re supporting a political candidate, congratulating a recent high school graduate, cheering a local sports team, or celebrating a holiday, Americans often use lawn signs to express themselves. But many local governments try to restrict the type or number of signs residents can display, as well as how long signs can stay up. Even worse, officials sometimes selectively enforce these rules against signs with messages they dislike. 

Thankfully, the First Amendment prohibits local governments from enforcing arbitrary restrictions on your right to display yard signs. Because signs by definition communicate messages — through words, images, or symbols — they constitute a form of speech protected by the First Amendment. 

Yard signs are a form of expression fully protected by the First Amendment. 

This explainer will explore the general legal framework that court decisions have established for restrictions on personal yard signs, and by extension flags, which local governments often also regulate under sign ordinances. (Restrictions on commercial signs fall under a different constitutional standard and are outside this explainer’s scope.)

Legal analysis of yard sign restrictions usually begins in earnest with the following question: Does the sign ordinance attempt to regulate signs based on content, or is it content-neutral? The answer determines how strictly the court will review the ordinance.

Content-based restrictions on lawn signs

If an ordinance treats signs differently based on their topic or message, it’s a content-based restriction unlikely to pass constitutional muster.

The Supreme Court’s decision in Reed v. Town of Gilbert illustrates this point. In that case, a church without a permanent location often put up signs early on Saturdays about where it would hold Sunday services. The town twice cited the church and its pastor for violating the municipal sign code, which regulated what signs could be posted anywhere in town, including on private property. The code allowed “temporary directional signs” related to an event only 12 hours before and 1 hour after the event. In contrast, “political signs” could remain on display for up to 60 days before a primary election and up to 15 days after a general election, while “ideological signs” had no durational limits at all.

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The Supreme Court held the sign code was content-based on its face because it regulated signs differently based on the message communicated. Even if the town wasn’t trying to suppress any particular viewpoint, its differential treatment of signs based on their content was enough to trigger strict scrutiny — the most exacting standard of judicial review.

Strict scrutiny requires the government to prove its regulation furthers a compelling interest and is narrowly tailored to achieving that interest, including by using the least speech-restrictive means to do so. The test is designed to protect against overly expansive speech regulations and politically expedient justifications for restricting speech.

For the vast majority of laws, strict scrutiny is a death sentence.

That was true of the Town of Gilbert’s sign code. The town cited two interests, aesthetics and traffic safety — the go-to reasons local governments offer when trying to justify sign regulations. Although courts have acknowledged these interests are “significant” or “substantial,” they have never gone so far as to accept that they are “compelling.”

The Court could have ended its analysis there. But it went a step further, assuming for the sake of argument that aesthetics and traffic safety were compelling interests, just so the Court could go on to explain that the sign code would still fail strict scrutiny because it wasn’t narrowly tailored to achieving the town’s stated interests. As to aesthetics, the Court noted that “temporary directional signs are no greater an eyesore than ideological or political ones,” yet the code allowed “unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones.”

The government also can’t privilege the American flag — or even official government flags generally — over other flags

The traffic safety rationale fared no better. The town failed to show “that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not.” This underinclusiveness was fatal because, as the Court pointed out, the government cannot plausibly claim strict limits on one type of sign are necessary while allowing unlimited numbers of other types of signs that create the same alleged problem.

While Reed makes clear that sign ordinances drawing content-based distinctions are almost always unconstitutional, the Court acknowledged that certain content-based rules — such as for hazard signs or street numbers — could pass strict scrutiny. But apart from narrow circumstances such as these, the government violates the First Amendment when it singles out certain topics for regulation. This means the government can’t do things like treat “political” signs differently from other signs. The government also can’t privilege the American flag — or even official government flags generally — over other flags, either. The bottom line is that the government can’t favor one type of speech over another without a very good reason.

Content-neutral sign restrictions

But what if a sign ordinance is content-neutral, meaning it doesn’t treat signs differently based on what they say? Some local governments seem to think they have carte blanche to restrict speech as long as they aren’t discriminating against particular topics or messages — including when it comes to yard signs. Fortunately, that’s not how the First Amendment works. Even content-neutral rules, that is, what courts call “time, place, and manner” restrictions, can be unconstitutional if they unduly restrict free expression.

Although content-neutral sign ordinances do not have to advance a compelling government interest, they still face real constitutional limits. To pass muster, they must be narrowly tailored to advance a “significant” or “substantial” government interest and leave open ample alternative channels of communication. “Significant” and “substantial” are lower thresholds than “compelling,” but they still mean the government’s interest must be more than trivial. Whether a sign regulation meets this standard is always a fact-specific question.

In FIRE’s experience, problematic time, place, and manner restrictions on yard signs mainly take one of two forms: numerical limits or durational limits.

Numerical limits

Some ordinances limit how many signs can be in someone’s yard, often capping it around three. Such restrictions are usually unconstitutional because local governments can’t show they’re narrowly tailored to serve a significant interest.

The U.S. Court of Appeals for the Fourth Circuit, for example, held a Virginia county’s two-sign limit unconstitutional. The court questioned the county’s reliance on aesthetics as a rationale, noting the Supreme Court’s observation that, generally, “private property owners’ esthetic concerns will keep the posting of signs on their property within reasonable bounds.”

The Fourth Circuit also found that the county’s ordinance didn’t leave open sufficient alternative means of communication. It rejected as too time-intensive or expensive the government’s proposed alternatives like giving speeches in public places, distributing flyers, engaging in door-to-door and public canvassing, and appearing at citizen group meetings. This “laundry list” of alternatives failed to recognize how a two-sign limit infringed homeowners’ rights, leaving no “viable alternative to the homeowner on his property.” There’s really no substitute for a yard sign when it comes to saying what you want to say, where you want to say it. 

Does this ruling mean all numerical limits are unconstitutional? Not necessarily. If the government set the limit at a much higher number, a court might look at that limit differently. But the key takeaway is that the government has the responsibility to show its regulations are actually necessary to address a real problem.

Durational limits

Local governments also often restrict how long signs can remain on display; however, these restrictions are likely unconstitutional. 

As an example, consider an ordinance that bans having any signs up for more than three months a year. This restriction would function as an outright ban for three-quarters of the year. The U.S. Court of Appeals for the Sixth Circuit invalidated an outright yard sign ban, holding it was arguably not “‘tailored’ at all,” let alone narrowly tailored. The same could be said of a ban that applies nine months out of the year.

Like strict numerical limits, durational limits that function as temporary bans do not leave open ample alternative channels of communication. Signs are an important — and, for many people, irreplaceable — means of expressing personal opinions. As the Supreme Court has explained, signs lack any real substitute, especially in a residential context:

Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute. Even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a hand-held sign may make the difference between participating and not participating in some public debate. Furthermore, a person who puts up a sign at her residence often intends to reach neighbors, an audience that could not be reached nearly as well by other means.

This recognition of the importance of residential signs led one lower court to conclude that extended durational bans are unconstitutional and “inconsistent with the ‘venerable’ status that the Supreme Court has accorded to individual speech emanating from an individual’s private residence.”

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Sometimes durational limits take a different form. Rather than banning signs in general from remaining on display past a certain time limit, local governments may target temporary signs relating to an election or event. For example, a town might allow display of an event-related sign only up to 30 days before and two days after the event. To the extent these rules are content-based, they are likely to fail under strict scrutiny, as mentioned above, because they treat signs differently based on whether they refer to specific events.

It’s easy to see the absurdity of such rules. If a town bans campaign signs outside election season, it will have to decide whether a sign reading “We Support the President!” should be treated differently from one saying “Re-elect the President!” Either the town arbitrarily singles out the latter, or it imposes an unconstitutional gag order on political speech for most of the year. Similarly, if a town requires removal of holiday signs or displays after what it views as the applicable holiday, it ends up policing whether something is really a Christmas decoration or — as FIRE successfully dealt with in a recent case — whether it’s a covert (and illegally unseasonal) Halloween decoration.

The government has no business asking questions like these, and the First Amendment ensures it doesn’t get to.

Conclusion

Yard signs are a form of expression fully protected by the First Amendment. The government can’t restrict them just because government officials or even a majority of residents want to do so. When the government restricts people’s expression in their own yards, it needs a very good reason. Content-based restrictions generally won’t cut it. Neither will arbitrary numerical and durational restrictions. When it comes to personal expression — especially on one’s own property — the First Amendment is a “keep out” sign to government officials.