Ah, election time. The shrill clamoring of dour-faced candidates. The incessant conniving of political minions calling to report "grievous" violations by the opposition of class C misdemeanor election law provisions. So it is with this question. I recognize that, strictly speaking, this may be seen as a criminal question, but if post this on the criminal forum, they'll either not answer it or ridicule me for wasting their time. So, I'll waste yours, instead.

Fact background: A candidate for a local office (no, not me -- this isn't one of those "hypotheticals" we get from friends/relatives seeking free legal advice), recognizing that early voting has begun and that the courthouse is where it happens, has begun parking a pickup with a large campaign sign mounted in the bed on the street adjacent to the courthouse. Sometimes it's on the street that's the route of a U.S. highway. Sometimes it's on a municipal street. Personally, I would've picked a different picture of myself to put in front of voters, but that's another matter.

Question: Section 392.032(a), Transportation Code, provides that a person may not place or maintain a sign on a state highway right-of-way unless authorized by state law. Similarly, section 393.002 sets forth a similar prohibition with respect to a "public road," with an exception for municipal roads or highways maintained by the municipality. Putting a sign in the right-of-way of one of these latter roads is prohibited by section 393.0025, unless authorized by the municipality. Assuming no authorization by the city, I see no other loophole here. Currently, I would rather not prosecute, but I was thinking of putting in a friendly reminder call to the candidate. Other ideas?

Legally parked. Free speech. As long as he is not violating election laws (being too close to polling place), a person may legally park their vehicle on a street. What is on that vehicle (bumper sticker, mary kay advertisement, etc...) is an issue of free speech.

Perhaps, but it seems the First Amendment issue is the one the vibrant lawyer from Colorado City recently lost in the Texas Supreme Court when highway signage Transportation Code provisions were challenged. The Transportation Code does not discriminate on the basis of the content of the message, it regulates all signs a person may "place" in the public right-of-way and does not exempt signs (this is an approximately 8' by 10' sign, not a bumper sticker) mounted on a vehicle (presumably a sign on a moving vehicle would not be "placed"). The First Amendment has no bigger fan than me, but I think that challenge would be difficult to sustain in light of the intervening authority from the state Supremes. All he has to do is park his vehicle in a parking lot, instead of in the street, to comply, so there are ample alternative means of communicating his message just as effectively. The state has a strong, if not compelling, interest in ensuring clear lines of sight on its roadways, and the Transportation Code provisions are directly related to that purpose. Moreover, they are content-neutral, and appear to be reasonable place and manner restrictions. All that points to the probable conclusion that crusading candidate loses. It's not a fight I want to undertake, though. If other viewers of this forum agree with Ms. Gibson, and disagree with me, I can respect that and enjoy the debate. I certainly have been conclusively told I was wrong many times during the misadventures that are my life.

I took a poll of people likely to vote which shows you (Scott) have a commanding lead of 48% over Beck who has only 47% of the vote. This poll is scientific, with an accuracy rate quaranteed to be within 5% (plus or minus)of the actual percentage of those people who will vote.

Now, don't you feel much better



(ps-You'll just be sure to remove those "vote for Scott" bumper stickers while in Amareallaa in case you have to stop at a red light or run out of gas)

[This message was edited by LV on 10-19-04 at .]

I have had similar questions arise about the wording of signs (not using the word "for" prior to the office being sought). It is always the opposing candidate complaing. My response has always been one warning phone call or letter. That way there is documentation that if the problem is not fixed some intent to violate the law (culpable mental state) can be shown. I don't know if the statutes you cite require a mental state culpable or otherwise.
Additionally, there are complaints that the signs do not carry the correct and required disclaimers. Those complaints are directed to the elections division of the Sec. of State or Ethics Commission for review.
Lastly, the local highway dept. is good about removing improperly placed signs and forcing the candidates to reclaim them in person at the local offfice. That seems to be the biggest deterant.
Maybe not the "legal" answer, but perhaps a way to keep your office from being involved in purely political sniping.
Let us know what you decide.

"Just one more thing", refer the "complaintant" to the proper law enforcment agency (PD, DPS, Etc.) to lodge their complaint, leave the decision to issue a citation up to that agency. Once a ticket is written(if it is) the trial of the case will be well removed from the election date making a plea agreement easier to reach or, atleast making the resulting trial appear to be about the actual criminal case and not a pre-election ploy to favor one candidate over the other.
Since my office does not have an investigator, I refer all citizen compliants(except hot checks) to the proper agency for review and investigation.
Including compliants for Class C violations.
If the officers refuse to issue a ticket, I figure there is not enough there to prosecute. If they do issue one, at least I have an unbiased "witness" to put one the stand at trial.
Hope those ideas help.

It is not a permanent sign and the vehicle is legally parked in a parking spot. I would treat it as a big bumper sticker and ignore it as long as it complies with the distance requirements.

Beck:

quote:

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What is on that vehicle (bumper sticker, mary kay advertisement, etc...) is an issue of free speech.

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I am sure relieved that it is ok to have "Mary Kay" on your car. Otherwise, my wife would be in a lot of trouble when she is out driving her pink cadillac.

I think Scott wishes to debate the merit of Barber, and how far one may go in relying upon it rather than Gilleo. While not explictly stated, Barber is a facial analysis that fails to properly consider the fact that while Gilleo was not potentially striking down a statute based upon a federal regulation involving federal funding to 50 states, it clearly stands for protecting political speech. While this distinction should be immaterial in the abstract, the practical impact of Gilleo should not be ignored. Gilleo does serve as fair warning that while Barber may slip past further scrutiny from the US Supremes for the present time, a proper "as applied" analysis on the right set of facts may well snare the unsuspecting public officer, piercing the even the strongest veil of qualified immunity via a factual finding of subjective discrimination, as unwarranted as that finding may be, while leaving the statute standing on its face.

And some day, the US Supremes may decide that beautiful highways are not as compelling an interest as the First Amendment whenever the US Supremes may chose to deal with this type of regulation and its potentially broad impact. In other words, when one is dealing with clearly political speech, Ms. Beck has a point and the waters are deep and dangerous. Sorry about that, Scott

Now don't you feel better


ps I omitted other issues such as statutory intent on whether a sign is really errected as intended by the statute such that the statute was intended to apply large ads painted on the side of trucks rolling down the highway and stopping at a red light (or is that an indication of doing business at the location?), all those ford, chevie, dodge nameplates , etc......

The discussion has convinced me of one thing ... I'm not prosecuting squat. A friendly phone call is really more of what I had in mind, anyway. Actually, Lee, one of my opinions is that -- with regard to the potential impact of Gilleo on qualified immunity analysis -- I would probably be safer prosecuting the case, since then my immunity would be absolute; thus, the clearly established ( ) nature of the substantive law would be immaterial. Moreover, as suggested by the Third Circuit in a recent Establishment vs. Free Exercise clause case (Child Evangelism Fellowship v. Stafford Township), enforcing the statute against commercial speech while not enforcing it against political speech could be, in itself, unlawful viewpoint discrimination. And, doesn't the fact that we're lightly treading around regulation of political speech mean that the challenge to the Transportation Code provisions, applied to a political sign, would necessarily be a facial challenge, regardless of how the litigants labeled it? Regardless of whether the challenge is facial or as-applied, the issue is still going to be whether the statutes are valid content-neutral time, place and manner regulations. I haven't seen anything yet that indicates they fail under the controlling criteria. I think the statutory intent issue of whether big signs on cars are intended to be swept into the scope of the prohibition is resolved fairly comfortably by inclusion of the key word "place." Of course, some pencil-neck lawyer can argue that "place" has an excessively vague meaning, but so too does the word "is." Such are the dangers of statutory draftsmanship, I suppose.

In any event, I have no plan of launching a grand campaign to rid Potter County streets of signs. I leave that to TxDOT. It did manage to generate discussion with good points made by people who (as is the norm) disagree with me. And THAT is the point of the First Amendment and this forum. I feel like a patriot now.

One of my opinions is that any statute that is not directed, by express statutory language, at the content of the speech, but the manner in which presented, should always be considered content neutral, and where the Courts (but not necessarily you or me) confuse the issues arises improperly from questions of secondary effects, abuse of process,overly broad vs narrowly tailored, et al, such that Gilleo becomes more of an as applied case rather than a proper content neutral case. Nevertheless, the distinction is extremely important for what generally leads to the striking of a statute is an "as applied" analysis of a content neutral statute, rather than an "as applied" analysis of the factual behavior, that should perhaps condemn the possible behavior, but leave the statute standing.
(See ZENFEST I vs. ZENFEST II)

After all, there is no way to draft a statute to cover every possible abuse, scenario, et al, as pointed out by Scott. Such attempts end up like HIPPA

Even 43 % ain't bad....