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Bar News - September 3, 2004 NH's Political Lawn Sign Statute Not Presumed Enforceable IN A BAR JOURNAL article, "Survey of 2004 Election Law Issues" in the Summer 2004 issue, several sections were inadvertently omitted. The most significant section not included in the print edition (the online version has been corrected) concerned the NH Department of Justice’s stance on enforcement of RSA 664:17, a statute governing limits on outdoor political signs. (See text of statute below.)
Author James Merrill notes that a US Supreme Court case, Ladue v. Gillio, overturned a statute banning certain categories of signs, including political signs, based on content. The last paragraph of the section titled "Traditional Political Advertising and the Constitutionality of Sign Restrictions" [page 13 of the print edition, starting with the words: "While the legal precedent cited above..."] properly reads: "In light of this authority, it has been the position of the Attorney General’s office since the Ladue decision that the RSA 664:17 durational restraints on political advertising located on private property conflict with the freedom of speech clause found in the First Amendment to the United States Constitution, and are therefore unenforceable. [endnotes omitted] Nonetheless, unlike the ban on corporate political contributions found in RSA 664:6, which was found to be unconstitutional by New Hampshire’s Federal District Court in Kennedy v. Gardner, the enforceability of RSA 664:17 has yet to be considered by the New Hampshire Supreme Court. In the event that the Attorney General’s pronouncement stifles New Hampshire municipalities from seeking to enforce the durational restraints on political advertising set forth in RSA 664:17, it is uncertain whether this issue will ever receive more significant treatment in a New Hampshire court." Two other sections also were omitted from the print version: The first paragraph in the section describing provisions of RSA 664:17 discusses the statute as it pertains to outdoor political signs found in a state right-of-way. Merrill writes that officials of the NH Department of Transportation are authorized to remove such signs—but only after notice has been given to the candidate for whom the signs were placed that the signs are illegal. Candidates are given 24 hours to remove the signs, or they will be removed by state officials. Added to the article [on page 12 of the print edition] is a paragraph that states: "According to the Attorney General’s office, when signs are removed in this fashion, the general practice is to remove all improperly positioned signs ‘to ensure there is no actual or perceived bias or favoritism towards any particular campaign.’ If a sign is placed improperly on private property, i.e., without the landowner’s permission, then the landowner may lawfully remove the sign or may contact the appropriate law enforcement officials to do so. If a law enforcement official is asked to remove a sign, the candidate will generally be contacted and given 24 hours to pick up the signs themselves. Failing compliance with this request, law enforcement can and will remove such signs." Lastly, at the end of the section titled "Title 1 - Reduction of Special Interest Influence" regarding the Bipartisan Campaign Reform Act (BCRA) [page 15 of the print edition], the article contains the following paragraph: "Additionally, this provision takes on greater significance locally where the new regulations prevent a state or local candidate, office-holder, or their agent, from spending nonfederal funds on public communications that refer to, promote, support, attack or oppose a clearly identified federal candidate. This is true even if a state or local candidate is identified in the communication, regardless of whether express terms are used. For example, if an ad funded with nonfederal resources were run by a state governor touting his or her close working relationship with a Member of Congress who was at that time a candidate for election, it would be prohibited under the new BCRA guidelines." Staking Their Claim  In Belfast, Maine, last February, Dennis Kucinich campaign workers drilled holes in the frozen ground and poured hot water into them to put out signs for their candidate. They then heard from city officials that the signs were illegal because state law only allows signs to be put up before a primary, referendum or general election. After the campaign threatened a legal challenge, city officials consulted with the Maine Attorney General’s office on the interpretation of the law and relented on their threat to remove the signs. (Photo courtesy of The Waldo Independent)
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