Legal questions arise about Lakeway political sign ordinance

Austin

LAKEWAY, Texas (KXAN) — Heading into a season of local elections, more and more political signs are bound to start popping up in yards, at businesses and along the road.

In Lakeway, city code says residents can only put political signs out during a certain timeframe. The ordinance says, “Signs concerning an election may not be placed more than 90 days prior to the election and shall be removed within 18 hours after the election.”

Recently, Lakeway Mayor Joe Bain posted about the ordinance in his blog, saying Building Development Services responded when a political sign was in the public right of way and was displayed before the ordinance allows.

Tiffany McMillan, who’s running in the upcoming Lakeway mayoral race, says it was one of her signs that was in question.

“The mayor said that there had been a complaint about my sign, so I did an open records request and there wasn’t a complaint about my sign,” McMillan said.

A city of Lakeway spokesperson said McMillan’s open records request didn’t yield anything because the complaint was verbal, not written.

“I feel targeted, especially after what happened last year,” McMillan said.

McMillan was referencing a fake Next Door account Bain admitted to using to post about McMillan when she was running for a city council seat.

Lakeway’s City Manager Steve Jones says the McMillan sign that was referenced in Bain’s recent blog post is the only case he knows of where the political sign ordinance has been enforced this year.

Political differences aside, however, some are questioning whether a city can actually say what someone can put in their yard, and when.

“I have a hard time understanding how that could be constitutional whatsoever,” said Austin-based First Amendment Attorney JT Morris.

Morris says cities can have sign ordinances that regulate safety aspects such as sign size or placement, but he says singling out political signs and restricting when they can be up likely wouldn’t stand in court.

“Once they make it content-based whatsoever, I mean if it just has a little hint of being content-based, that’s going to fall under some serious First Amendment scrutiny,” Morris said.

Lakeway’s city manager said the city feels it’s not breaking any laws because municipalities are allowed to place duration limits on temporary signs. However, Morris says that would only be legal if the city was placing that time limit on all types of signs, not just political ones.

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