After a two-year legal battle initiated by Scarsdale resident Robert Berg, a district court judge upheld in a court ruling on Nov. 12 that the village’s provisions on sign postings on public land was constitutional. The court also reversed a preliminary injunction that halted the village’s enforcement for sign postings on public property and in the village’s right of way.
Berg, who used the injunction to justify posting signs for the Voters Choice Party candidates for the village board of trustees election in September on village property, alleged village codes 256-1 and 196-17 were constitutionally vague and violated the First Amendment and the due process clause of the 14th Amendment. District Court Judge Nelson Román dismissed the assertions in the 30-page decision, but did rule that the village’s prior preferential treatment toward political signs had discriminated against all other types of signage and thus violated the First Amendment. Román amended his decision on Nov. 16 and awarded $1 in nominal damages to Berg for his claim that the village and police department violated the First Amendment by selective enforcement.
“The village is pleased that the court agreed that the village code provisions were constitutional and enforceable,” said Village Manager Steve Pappalardo, adding that the village would need to “review the decision closely” before deciding whether or not the village would still enforce 256-1 and 196-17 to limit sign postings on public property and within the village’s 13-foot right of way.
Provision 256-1 provides that no person is allowed to obstruct any street, sidewalk, public easement or other public place without first securing a written permit from the village engineer. The village engineer must make a decision to grant or deny a permit application within three business days.
Provision 196-17 provides that no person is allowed to post any sign, notice, placard, poster or other advertising medium to any sidewalk, tree, stone, fence, wall, pole, railing or other object in, along, upon or over any street, park or other public place in the village.
During a contentious school bond vote in 2018, Berg filed a lawsuit against the village when he discovered Scarsdale police officers removing “Vote Yes” signs placed on residents’ lawns within the village’s 13-foot right of way. Román ruled in Berg’s favor, issuing a temporary restraining order and preliminary injunction against the village and police department, which prevented the removal of signs within the village right of way.
According to court documents, police officers were removing yard signs in 2018 based on village code provision 196-17. In response to the temporary restraining order, the Scarsdale Police Department issued a special order to halt the enforcement of the provision and the removal of signs placed on public property or within the village right of way.
In the case, Berg argued that though there was detail and breadth in section 196-17, the section was vague because it didn’t include “right of way” in the text. Román wrote that “right of way” was actually defined in the definitions section in 281-2 in the village code and adequately notified the public that the village-owned right of way was considered a “public place.”
Because code provision 256-1 uses “public place,” Román ruled the provision applied to the village’s publicly owned right of way.
Berg also argued that “obstruct” or “obstruction” was not defined in 256-1. In response, Román wrote that both the Department of Public Works and the village manager had provided similar definitions in their testimony that was consistent with the dictionary definition of “obstruct.”
Román added that just because the provision didn’t specify the duration of the proscribed obstruction did not render it vague. The court declared that 256-1 clearly indicated that any person wishing to block or impede a public space had to seek a permit from the village engineer to do so. Berg said that 256-1 was vague because no one had sought a permit to place a temporary sign in the right of way, the village hadn’t issued a permit and the engineer expressed uncertainty over whether a permit would have been required. Román wrote, “The failure to apply a law is neither relevant to, nor dispositive of, whether the law is vague.”
Berg claimed that 256-1 failed to maintain enforcement standards, as it proscribed obstruction without a permit from the village engineer but failed to provide the standards by which the village engineer was to evaluate permit applications.
Román wrote that, while it was true section 256-1 didn’t contain enforcement standards (other than a three-day time period in which the village engineer had to grant or deny an application), standards did appear in 294-1(B), which tackles visual obstructions.
“The judge didn’t do a fair reading of the evidence in front of him,” Berg told the Inquirer. “He was trying to uphold these statutes.”
Román wrote that municipalities are allowed to regulate signs on public land. Because the village’s code provisions were “content neutral” and didn’t specify a sign with specific intent, the court declared that the code sections furthered “substantial government interests.”
Román wrote that 196-17 related to “esthetic concerns” and 256-1 had a stated public interest in pedestrian and traffic safety.
“The judge said there’s traffic or safety rationale for this provision, but he’s not basing that on any facts,” said Berg. “The facts in the record before him suggested otherwise.”
The court also ruled that Berg was mistaken that 256-1 was an unconstitutional prior restraint, or when a government takes action to prohibit speech prior to the speech occurring.
“They are not unconstitutional prior restraints where the permit considerations provide specific hazard-focused standards without reference to the speech content of any potential obstruction,” wrote Román.
In terms of the village and police’s content-based selective enforcement, Berg argued that during the run-up to the board referendum, the village and police had engaged in “discriminatory enforcement against signs containing political as opposed to commercial speech and within their enforcement against the political signs, discriminated against signs supporting the bond referendum relative to those opposing it.”
The court said that up until 2018, the village and police department had been giving “preferential treatment” to political signs. Rather than create a new policy to discriminate against political speech beginning in 2017, the police department began to treat political signs equally to all other types of signs within the village’s right of way.
According to court documents, for at least 10 years the village had allowed individuals to post election signs in the village’s right of way for a period of time before the date of any election. If a complaint was received, the village would ask that the sign be moved from the right of way onto the person’s private property. When the village received a complaint, they would advise callers that the village didn’t usually remove political signs from the right of way. In the instance where a complainant insisted upon removing a political sign, the village staff would remove it.
Court documents also specified that the police dealt with political signs similarly. According to testimony, police accommodated political signs and allowed them to remain in the village’s rights of way unless a complaint was filed.
Román ruled that the village and police department’s prior preferential treatment toward political signs “effectively discriminated against all other types of signs” and thus violated the First Amendment.
“Any enforcement that considers the type of sign or the viewpoint expressed would violate the First Amendment,” wrote Román.
Berg said he plans to appeal the decision to Court of Appeals for the Second Circuit and has contacted the New York Civil Liberties Union to gauge their interest in assisting him.
“It wasn’t the decision I wanted,” said Berg. “I want to invalidate these provisions vis-à-vis lawn signs in the village right of way. I mean, if the village decides to get rid of these code provisions then it can go away, but otherwise I’d like the Second Circuit to find them void.”