City of Windsor Heights: Right on sidewalks, wrong on censorship

The inexplicably intense, years-long debate over installing new sidewalks in Windsor Heights appeared to be heading toward resolution this summer.

Then officials in my home town took the idiotic and unconstitutional step of trying to prevent anti-sidewalk homeowners from displaying signs critical of city government.

Earlier this year, the Windsor Heights City Council approved a plan to lay sidewalks on a few streets near two elementary schools, assessing affected property owners for half the cost. Homeowners on those streets overwhelmingly oppose sidewalks and used a petition drive to block the assessments. A majority of city council members then voted in June to move ahead with the plan, which the city would finance using other revenue.

So far, so good.

After construction began in July, residents Marijetka and James Orr tied a banner to their front porch, reading, "No Concrete! 96 Percent said No. Save the Green Space!"

The American Civil Liberties Union of Iowa picks up the story in the organization's demand letter to the city of Windsor Heights (sent today and enclosed in full below).

The next morning [July 15], the Orrs left for vacation to Canada. Prior to leaving, the Orrs notified the Windsor Heights Police Department that they would be gone on vacation, so that the police could check in on the home and ensure its safety. The following Tuesday, July 18, while the Orrs were still on vacation, the City sent them a “Notice to Abate” letter, claiming that the sign constituted a nuisance because it was an “unsafe sign.” The letter stated that the “maximum projection for any banner is three feet with a minimum clearance of 8.5 feet,” and that the sign had been determined to be an “unsafe sign” because “the minimum clearance of 8.5’ has not been established.” Notably, the sign, being attached to the open-air window area of their front porch, laid flush with porch, such that no clearance would have been necessary, as the sign was placed somewhere where people do not and cannot walk under it, making its designation as a banner inappropriate.

The letter stated that they were required to remove the sign “immediately.”

Only a few hours later that same day, City officials came to the property and removed the sign. The City did not have the Orr’s consent, or a warrant, to enter onto their property and seize the sign. On August 11, the Orrs filed an appeal of the decision and request for hearing with the City.

You don't have to be a First Amendment expert to see that the banner conveyed a political message and posed no threat to public safety. The Orrs' position on sidewalks is wrong-headed in my opinion, and their "96 percent" claim is misleading. The residents of three streets don't speak for everyone in Windsor Heights. The last city council elections were in effect a referendum on this issue, and pro-sidewalks candidates won. Nevertheless, the Orrs have a right to use their property to express their opinion about public policy.

The next chapter in this story is even more absurd. Mike Miller and Diane Foss opposed the city's action to take down the anti-sidewalk banner at their neighbors' home. So they repurposed an old campaign yard sign to read "CITY HALL RUN AMOK."

Hundreds of residents display similar-sized signs for candidates in Windsor Heights. However, some misguided person in a position of power couldn't tolerate this one. From the ACLU's demand letter:

On July 28, 2017, Miller and Foss received a notice and abatement letter from the City of Windsor Heights ordering them to remove their sign as well. The Notice instructed them to remove the sign from their property within twenty-four hours or face fines of up to $1000 per day that the sign remained in place.

In their case, the sole basis stated in the letter was an alleged violation of Windsor Heights City Code section 50.01, which defines nuisances as “[w]hatever is injurious to health, indecent, or unreasonably offensive to the senses, or an obstruction to the free use of property so as essentially to interfere unreasonably with the comfortable enjoyment of life or property.”

The letter did not indicate that the sign violated any other zoning or sign ordinance.

You can read the Windsor Heights City Code here. I doubt any reasonable person would consider this sign injurious, indecent, or "offensive to the senses." It's not even offensive speech--though if it were, it would still be protected under the First Amendment.

The Orrs, Foss, and Miller appealed the orders to remove the signs, and the city council is set to consider the matter at their August 21 meeting. Today the ACLU wrote to the city, demanding a resolution in favor of their clients and a promise "that neither those homeowners nor any other residents in Windsor Heights will be subject to similar unconstitutional action in the future."

I repeatedly sought comment from city officials today. The promised call-back after someone wrapped up a meeting never happened.

As a Windsor Heights native who moved back fifteen years ago, I've sometimes felt embarrassed by how fiercely some people resist amenities that would make this small suburb a safer and healthier place to live, while increasing property values.

But I'm even more embarrassed that my city government took such a heavy-handed approach to political speech. The city would be wise to agree to the ACLU's requests, so as not to let this dispute end up in court, where the homeowners would surely be vindicated.

I'd go one step further and recommend that Windsor Heights officials find better legal representation, assuming city attorneys Erin Clanton and Matthew Brick signed off on strong-arming these homeowners. Brick happens to be the city attorney for Muscatine as well. Earlier this year, he drew up mostly-ridiculous written charges of removal against Muscatine Mayor Diana Broderson to serve the interests of that town's city council and city administrator. A district court is likely to overturn the city council's pseudo-judicial proceedings to impeach Broderson.

Constitutional issues aside, on a purely tactical level it was stupid for Windsor Heights to make martyrs out of people who were exercising their speech rights. Backlash from sidewalk opponents was already going to be a factor in this November's city council races.

UPDATE: On Del Matro, where sidewalks are being installed, almost all of the yards continue to display the small, yellow anti-sidewalk signs that became popular last year. Several other homeowners have put up additional signs critical of the city. I took all of these pictures on August 15 (standing in the street, not trespassing on private property). One neighbor is displaying the banner taken from the Orrs' property.

The person complaining about "taxation without representation" may not comprehend the concept of city council races. Incidentally, about ten years ago voters on Del Metro helped elect three city council members (Betty Glover, Dave Jenison, and Charlene Butz) who campaigned against sidewalks. Glover continues to serve, while Jenison and Butz lost their latest re-election campaigns.

ACLU of Iowa press release, August 14:

ACLU of Iowa Assisting Windsor Heights Residents Ordered to Take Down Signs Critical of the City

Windsor Heights, Iowa — Today the ACLU of Iowa sent a demand letter to the City of Windsor Heights to defend two couples' First Amendment rights to free speech regarding a sidewalk issue in that community.
The ACLU of Iowa is assisting two couples who were censored by the City of Windsor Heights after they each posted signs on their properties that were critical of the Des Moines suburb’s actions on sidewalks.

Banner Taken Down at Orr Property

In the first case, Marijetka (pronounced Mah-ree-yet-ka) and James Orr hung a professionally made vinyl banner on their front porch, tied securely into place at all four corners. It read “No Concrete! 96 Percent said No. Save the Green Space!”

The next morning, the Orrs left for vacation. Before they left, the family had notified the Windsor Heights Police Department that they would be gone on vacation so that the police could check on the home.

A few days later while the Orrs were still on vacation, the city sent them a “notice to abate” letter, claiming that the sign was a “nuisance,” and stating that the Orrs were required to remove the sign “immediately.” Mere hours later, that same day, city officials came and took down the banner from the porch without the Orrs’ permission.

City Also Orders Removal of Small Yard Sign

In the second case, the Orrs’ neighbors, Mike Miller and Diane Foss, were upset with the city’s actions against the Orrs. In response, Miller and Foss put up in their front yard a small sign, which read “City Hall Run Amok.” Soon after, they received their own letter, demanding they remove the sign or be fined up to $1,000 a day.

The pair of homeowners has filed appeals of those orders to remove the signs to the Windsor Heights City Council, which next meets on Monday, August 21.

ACLU Demand Letter Sent

In today’s action, the ACLU sent a demand letter to the City of Windsor Heights. The letter informs the city that its actions in ordering the signs’ removal is a violation of the homeowners’ First Amendment rights. The letter also seeks resolution of the matter by noon on the day of the scheduled hearing August 21.

Specifically, the ACLU of Iowa demand letter seeks:
1) Successful appeal of the requirement that Miller and Foss and the Orrs remove their signs
2) Reassurance from the city that neither those homeowners nor any other residents in Windsor Heights will be subject to similar unconstitutional action in the future.
The issue of installing sidewalks for the first time in Windsor Heights has been extremely contentious in that community. Many residents object to having sidewalks put in for various reasons and arguments for and against sidewalks in the community have been raging for months. Signs and posters on the issue, as well as other political and business signs, can be seen throughout the neighborhood, including on the mayor’s and a city councilperson’s property.

Signs Are Free Speech
Rita Bettis, ACLU of Iowa legal director, said, "The ACLU takes no position on the sidewalk issue itself, of course. But whatever one thinks about the sidewalks, the City of Windsor Heights should champion the right of its residents to peacefully express those thoughts and opinions, not censor them. The First Amendment protects most strongly exactly this kind of speech, which is critical of the decisions of government officials.”

Mike Miller, who was ordered to remove his small front yard sign by the City, said, “My wife and I feel it is our right to express our opinion. The First Amendment defends our right to do that and the City of Windsor Heights cannot take that away.”

Miller said it was important to them to appeal the city’s decision and let the public know how the city is abusing its power. “We want to try to make sure this doesn’t happen to anyone else,” Miller said.

Down the street from the Miller and Foss house, Marijetka Orr expressed similar concerns. “There were absolutely no safety problems with the sign. It was tied securely to our porch. It’s also far away from the street. We just wanted to express our opinion, like so many other people on our street have done. But the city did not like what we had to say so they came and just took it away.”

The First Amendment Applies to Yard Signs

The Supreme Court has held that the First Amendment protects people from municipal regulations that are based on signs' content, rather than neutral factors like size and placement.

Any city ordinances that regulate signs have to be neutral as to what the signs say. Cities can’t allow for-sale signs, for example, but ban political signs. Ordinances also have to be reasonable and serve a public purpose.

The Windsor Heights ordinance is also problematic because it allows bigger signs for religious signs than other types of signs. That’s the kind of content-based regulation the Supreme Court has held violates the First Amendment.

In a TV interview, the Windsor Heights city clerk responsible for enforcement of the city’s sign ordinance said sign enforcement is “complaint-based only.” If the city receives a complaint or anonymous tip, she said, they check it out.,

Bettis said that censoring content based on the complaints of others is what the courts call a “heckler’s veto,” which is a totally impermissible way for the government to regulate speech under the Constitution.

“To be clear, these signs were pretty polite,” said Bettis. “But even speech that might be offensive or disagreeable to one’s neighbors—or city council members—is protected under the First Amendment.”

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