Suit claims ordinance violates First Amendment rights

Milton will face the American Civil Liberties Union in court about signs a citizen posted in her yard, and has requested the case be moved from the state to the federal level.

In February, Milton’s town code enforcement officer, Mike Trotta, contacted 62-year-old Penny Nickerson, the homeowner at 407 Union Street. According to the ACLU, Trotta advised Nickerson that four signs on her property were in violation of the town code because they were considered to be political. The code allows for citizens to post political signs, but only between 90 days before and 14 days after an election.

Nickerson complied and agreed to temporarily remove the signs, but requested a meeting with town representatives to explain why she felt her right to free speech was being violated. Town representatives declined to meet with her, and she instead received two letters from the town solicitor, Seth Thompson.

“Milton’s signage regulations serve purposes acknowledged by the U.S. Supreme Court as legitimate,” Thompson wrote. “If you did not remove [the signs] promptly, the Town may elect to issue a notice of violation and fine(s).”

Nickerson was surprised by the town’s resistance.

“I contacted the ACLU when it became apparent this wasn’t going to be a quick, simple thing, which it should have been,” she said. “I really thought it would just be a couple conversations. I guess I’m naïve.”

On May 15, the ACLU filed a suit in the Delaware Court of Chancery against the Town of Milton, citing violations of the free speech provisions of the First Amendment of the United States Constitution and Article I, Section 5 of the Delaware Constitution. The suit seeks to have the political signage portion of the Milton Town Code declared unconstitutional, as well as monetary damages.

Different interpretations of the law

Nickerson has lived in Milton for about three years and is a former high school teacher of U.S. history and government. She grew up in a self-proclaimed veterans’ family, with soldiers from both World War II and Vietnam.

“My family came to this country before it was a country, and they came for religious freedom,” she said. “They’ve been fighting for their rights ever since, and I’m not going to be the one to break the chain.”

Nickerson’s fight may be a bit more complex than her ancestors.

In November of 2016, Milton officials amended the town code with the intention of making the town’s signage ordinance content neutral. Content neutral laws regulate the time, place and manner speech can take place and are more likely to be viewed as reasonable by the courts, while content based laws regulate the speech itself and are subject to a much stricter scrutiny.

The amendment left the original language regarding time, place and manner restrictions in place, but changed the definition of political sign to remove the language describing it as “a temporary sign intended to advance a political statement, cause or candidate for office” to “a temporary sign erected … prior to any federal, state, county, school district or municipal contested election or referendum with voting by Milton’s residents.”

The question is: Did Milton’s amendment succeed in making the political signage ordinance content neutral? And if it didn’t, is that enough to declare the ordinance unconstitutional?

In one of Thompson’s letters to Nickerson, he cited City of Ladue v. Gilleo, a 1994 court case.

“The court in that case indicated that a municipality has a valid interest in minimizing visual clutter,” he said. “Similarly, in Reed v. Town of Gilbert, the court indicated that a city might reasonably view the general regulation of signs as necessary because signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.”

The ACLU, however, disagrees with Thompson, and cites the fact that Milton allows a variety of other signs to be posted year-round, including bulletin boards and announcement signs for churches and other nonprofits, real estate and contractor signs, and memorial signs or tablets.

According to the ACLU’s complaint, “The Code provision enforced against [Nickerson] is content based in that it applies to and restricts only certain types of messages – those Milton considers ‘political.’”

 “Milton cannot restrict the message on a sign because someone made an arbitrary decision that the message is ‘political,’” said ACLU of Delaware Executive Director Kathleen MacRae. “The right to speak freely is most important in controversial and turbulent times. Ms. Nickerson has as much right to put a sign on her lawn saying ‘Love Trumps Hate’ as she does to put up a sign that says ‘House for Sale.’”

MacRae said she is unaware of any other cases like Nickerson’s, and that while most towns have laws regulating political campaign signs, “I don’t believe most towns interpret ‘Vote for Bob on Election Day’ as equivalent to Penny’s messages.’”

Nickerson has not been fined by the town thus far. Though the ACLU filed the case in the Delaware Court of Chancery, Milton’s attorney, Scott G. Wilcox of Whiteford, Taylor and Preston, has filed to move the case to federal court. A date and venue for Nickerson v. Town of Milton have yet to be decided upon.

Despite her disagreement with the town, Nickerson said her overall experience living in Milton has been a positive one.

“It really is a wonderful town. This is an aberration. This is not normal,” she said. “It’s a very tolerant town and people get along.”