People display all sorts of messages at public parks in Westfield, New Jersey, including political signage. But officials pounced when Shawn Mullen set up a table with small campaign signs in 2021.
Mullen, who was running for Town Council, co-sponsored the park activity. But an incumbent candidate from the opposing party saw what was happening and called the police, who ordered the organizers to take down their signs.
Authority for the crackdown came from a town ordinance, selectively enforced, that forbids the display of any “signs, posters, or other material” on public land without express government permission.
The ordinance, Section 32-4(i), provides no restrictions or guidance for vetting speech. Town officials can approve or deny speech for any reason. The result is unbridled discretion to favor some messages and censor others.
Courts call this viewpoint discrimination, a First Amendment violation. Public agencies cannot favor any religion, club, or political party. But at the same time, they cannot show hostility. They must remain neutral.
Most municipalities understand this. They regulate speech on public property, but they narrowly tailor their ordinances to serve a compelling public interest like traffic, safety, or noise control. They are careful not to make their ordinances overly broad. Municipalities also avoid content-based restrictions.
This did not happen in Westfield. The self-serving incumbent made special mention of political affiliation when he called the police. The incident report shows he singled out his rivals for being “Republican party candidates.”
Attacking Democrats would be equally wrong. The FirstAmendment makes no distinction, something important to remember during election season.
To help prevent abuses, Westfield must amend its sign code. Our public interest law firm, the Institute for Justice, sent a letter to town officials on Oct. 21, 2024, laying out the constitutional issues. Before hitting “send,” we reviewed evidence showing unequal enforcement of the law—or no enforcement at all except against Mullen and his associates. Signs and political literature routinely appear on public property in Westfield. Some messages promote individual candidates, while other messages promote issues like gun control, police reform, and prochoice abortion policy. Initial reaction to the letter has been positive. The town appears to be considering reform. Yet far too often, cities and towns dig in. They set themselves up as the speech police and refuse to budge. They even use zoning laws to block murals and signs on private land when they do not like the message.
St. Louis targeted one community for eminent domain, and then tried to silence critics who fought back. Regulators threatened property owner Jim Roos with ruinous fines when he painted a large sign on the side of his building with the words: “End Eminent Domain Abuse.” He sued and scored a First Amendment victory in 8th U.S. Circuit Court of Appeals in 2011.
More recently, code enforcers have targeted bakery owner Sean Young for displaying a student-painted mural in Conway, New Hampshire. Code enforcers came after truck owner Will Cramer for putting a “for sale” sign in the windshield of his vehicle in Nazareth, Pennsylvania. And the police came after William Fambrough when he displayed signs in support of the mayor’s chief political rival in East Cleveland, Ohio.
All three of these cases, which remain open, highlight at least two problems with speech regulation. One risk is self-censorship. People can see retaliation against others and stay quiet. The second risk is government bias. Detecting, reviewing, and correcting speech in a fair manner would be difficult or impossible.
To combat these threats, the Supreme Court ruled in Lakewood v. Plain Dealer, a 1988 decision out of Ohio, that regulators must establish “neutral criteria” when licensing or permitting speech. They cannot base approval or denial on the “content or viewpoint of the speech being considered.”
Westfield neglects to include this safeguard in its sign ordinance, leaving people like Mullen exposed. The fix would be simple: Amend the ordinance to focus on neutral criteria, and leave political decisions to voters. ***
Ben Field is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Va.
