By far the most common keyword I’ve used in this blog is “signage”. At the time of this post, I have written 205 articles that feature the topic. This should come as no surprise. After all, it’s a blog on the built environment, and signs are ubiquitous anywhere humans have a presence; additionally the fundamental definition of “sign” offers tremendous breadth. What constitutes sign regulations is equally expansive. Because signs aren’t just instructional or promotional. They can be anything—sometimes inscrutable or hilarious (or maybe both). And, on other occasions, it’s reasonable to add two additional adjectives into psychosocial mix: hyperbolic and sinister. Like this one, planted in the strip right between the sidewalk and the curb in Washington DC:
Okay, I’ll bite. My neighbor may indeed be a killer, and, during a time of amplified cultural panic, why not assume the worst? Presuming my readership is as cynical as I am (or at least as skeptical), does an entity genuinely committed to preventing neighborcide think that the best way to get the message across is through texting and QR codes? Let’s get real here: the low level of detail to this sign and its passive recruitment both carry more than a whiff of phishing, a phrase we typically associate with digital spam that entices people to give personal info. Phishing is indeed a cybercrime, so how could a yard sign imitate it? Easy—it uses the same sensational tone (let’s scare the viewer) and then lures the guileless into giving information away by digital means: text messages or QR codes in this case. Like most phishing efforts, it’s low energy; the person who planted this sign didn’t choose a particularly strategic location. It’s on a busy street right outside the fortification of the Washington Navy Yard—literally.
Signage represents a sizable chunk of zoning regulations in most municipalities’ codes of ordinances. In the absence of carefully crafted sign regulations, a place can easily become glutted with “junk” promotional signs on even the tiniest patch of public land, like the neighbor-killer sign listed above. Imagine the volume of junk paper mail each household gets each day—in proportion to good mail—and project that same proportion onto the viable, good-faith instructional and promotional signage out there. We would never see flowers again; they’d get choked by the shadow of all those yard signs. Broad, sweeping sign regulations can easily run afoul of the First Amendment, especially when the laws affect content of the signs, which falls under the highest, strictest scrutiny. The SCOTUS decision Reed v. Gilbert (2015) powerfully amplified the standards by which municipalities (such as the Town of Gilbert, AZ in this case) could carve out exemptions based on content, in this case affecting the Town’s permit requirement for most outdoor signs, with the exception of “political”, “temporary directional”, and “ideological signs”. The Supreme Court determined that these exemptions for otherwise strict outdoor sign regulations did indeed duly burden a local church that met at rotating locations. Churches, as I have noted in the past, enjoy unprecedented First Amendment protections, enhanced through the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000. Reed v. Gilbert determined that the Town’s outdoor sign regulations were facially content-based, since they defined categories of signs based on messages (“political” and “ideological”) which could easily drift into territory of viewpoint discrimination, a First Amendment Protection.
Gilbert’s affirmation of content-neutral restrictions ultimately forced thousands of municipalities to change their sign regulations, and, if the District of Columbia’s regulations didn’t initially protect the neighbor-killer sign at Navy Yard because of its presumably misleading content, it does now. (The phishing activity that it seems to promote may still be illegal on its own terms, but the content of the sign is not. And who knows: maybe it really is a legit business linking customers with their sociopath neighbors.) Beyond content, other sign regulations tend to focus on time, place, and manner restrictions, to which courts typically can only apply intermediate scrutiny. These regulations, which can restrict the size of signs, the approach (canvassing or saturating a targeted geographic area), or the medium (animated electronic signs), are much less likely to face any sort of threat of abrogation from the courts. And while a law may ultimately require permitting to deploy signs promoting dubious goods/services (like our neighbor-killer alert), a single sign like the one in Navy Yard is unlikely to face penalty for a violation; the enforcement infrastructure simply doesn’t exist to handle it. (If the Command at Navy Yard doesn’t like the sign, it can remove it. And probably did within 24 hours.)
Opportunists, however, can easily skirt place-related sign regulations, which probably explained why Arlington Public Schools chose to locate its politically divisive signs in the median of a busy highway. Why not? It might annoy people who didn’t like the message, but the yard signs were so inaccessible that few people would attempt to remove them, thereby getting the word out to tens of thousands of motorists every day. High-traffic public lands are a goldmine, even if they generally might fall within intermediate scrutiny of the place-based sign regulations. Take this one:
I took the photo at night, and I didn’t realize how poorly it came out. No matter. I can assure that it is not political, not ideological, and not offering directions to a temporary event (the Reed v. Gilbert litmus test that SCOTUS overturned). The bigger issue is the context—the location of this sign.
It’s on the side of a road in Washington DC. A busy road. A thoroughfare. Stepping back a little further…
…it’s on the side of Interstate 395, just south of L’Enfant Plaza, the National Mall, and the Federal Triangle. It’s the thin wedge of land (technically an island) split by the Washington Channel and Tidal Basin. Here’s a clearer map of West Potomac Park.
It’s also where US Route 1 converges with I-395, combined with routes for accessing the park lands that buffer the Potomac River from urban development. It’s a crazily busy stretch of highway—a spaghetti junction of exit ramps, limited access roads, and High-occupancy vehicle lanes. And because I’m a nutcase, I walked right to the spot indicated with the purple star.
And it was there, amidst speeding cars hugging a blind curve, perched among scattered piles of litter, blown-out tires, and road kill, someone decided to plant a yard sign advertising an accounting firm. It’s probably not supposed to be there; a private firm would need to seek a permit with the National Park Service, who manages the land, before it could install a promotional sign. And the NPS would probably reject the permit.
So it’s a case study in “ask for forgiveness, rather than permission”. And as good of an example as I can find on short notice on effectively skirting time, place, and manner sign regulations. Odds are pretty good that it will remain there at least through the end of tax filing season. After all, aside from landscaping crew, who’s crazy enough to get out and walk around here?