BILL ANALYSIS Ó
SB 337
Page 1
Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 337 (Kehoe) - As Amended: June 16, 2011
As Proposed to Be Amended
SENATE VOTE : 23-15
SUBJECT : Tenancy: POLITICAL Signs
KEY ISSUE : Should tenants have the same First Amendment right
as anyone else to display political signs at their places OF
RESIDENCE?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill seeks to give tenants a basic and traditional right
that all other citizens enjoy: the right to post reasonable
political signs at their residences as a means of reasonably
expressing to the rest of the community their views and
positions on important political matters. The United States
Supreme Court has held that posting political signs on one's
residence is a protected and time-honored form of political
expression. To be sure, the First Amendment of the United
States Constitution protects this form of expression from
infringement by government actors, but not necessarily from the
actions of private landlords. However, the free speech
provision of the California Constitution has been interpreted by
the California Supreme Court to be broader in scope than the
First Amendment, most notably in that it restrains both
government and private suppression of protected speech. This
bill is similar, but not identical, to a bill that the author
carried in the 2005-2006 legislative session. That bill passed
through both houses of the Legislature but was vetoed by the
Governor, apparently because it both limited a tenant's right of
expression (by limiting the size of sign and imposing time
constraints, for example) and at the same time because it did
not give landlords clear authority to control the appearance of
the property. Although the current bill also limits the size of
the signs and how long they may be posted, it appears to give
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much more opportunity for a landlord to prohibit signs that
violate the law and strictly limits the content of the signs to
elections and votes of public bodies. The bill passed off the
Senate Floor on 23-15 vote. It is opposed by apartment
associations, rental property owner associations, and the San
Francisco Association of Realtors who contend, quite literally
it seems, that the bill could lead to mass demonstrations and
eruptions of violence.
SUMMARY : Provides that a landlord shall not prohibit a tenant
from posting or displaying political signs, as defined, except
under certain circumstances. Specifically, this bill :
1)Provides that a landlord shall not prohibit posting or
displaying political signs on or within any portion of the
tenant's dwelling unit that relate to any of the following:
a) An election or legislative vote, including an election
of a candidate to public office.
b) The initiative, referendum, or recall process.
c) Issues that are before a public commission, public
board, or elected local body for a vote.
2)Permits a tenant to post or display political signs in the
window or on the door of the premises leased by the tenant in
a multifamily dwelling, or from the yard, window, door,
balcony, our outside wall of the premises leased by a tenant
of a single-family dwelling.
3)Permits a landlord to prohibit a tenant from posting or
displaying political signs in the following circumstances:
a) The political sign is more than six square feet in size.
b) The posting or displaying would violate a local, state,
or federal law.
c) The posting or displaying would violate a lawful
provision in the governing documents of a common interest
development, as specified.
4)Requires a tenant to post and remove political signs in
compliance with the time limits set by the ordinance for the
jurisdiction where the premises are located. Specifies that
if no local ordinance exists or if the local ordinance does
not include a time limit, a landlord may establish a
reasonable time period for the posting and removal of
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political signs so long as it is at least 90 days prior to the
date of the election or vote to which the vote relates and at
least 15 days following the date of the election or vote.
EXISTING LAW :
1)Recognizes that residential signs are "a venerable means of
communication" that "have long been an important and distinct
medium of expression." ( City of Ladue v. Gilleo (1994) 512
U.S. 43, 54-59.)
2)Guarantees that "every person may freely speak, write and
publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not
restrain or abridge liberty of speech or press." (Cal.
Constitution, Art. I, 2, subd. (a); see also Wilson v.
Superior Court (1975) 13 Cal.3d 652, 658) (holding that the
California free speech clause is "more definitive and
inclusive" that the First Amendment); and Robins v. Pruneyard
Shopping Center (1979) 23 Cal.3d 899 (holding that the
California free speech clause is not limited solely to
government actors, as is the First Amendment.)
3)Provides that the governing document of a Community Interest
Development (CID) may not prohibit homeowners from posting
noncommercial signs, posters, flags, or banners on or in their
individual properties, except as required for the protection
of public health or safety or if the posting would violate a
local, state, or federal law. Permits a CID governing
document to prohibit signs or posters larger than nine square
feet, and flags or banners larger than 15 square feet.
Further permits CID governing documents to prohibit signs made
out of lights, roofing, siding, paving materials, flora, or
balloons, or any other similar building, landscaping, or
decorative component, or signs that include the painting of
architectural surfaces. (Civil Code section 1353.6.)
4)Provides that a resident in a mobile home park may not be
prohibited from displaying a political campaign sign in the
window or on the side of a manufactured home or mobile home,
or within the site on which the home is located or installed,
so long as such signs do not exceed six square feet in size or
are displayed for longer than the period of time between 90
days prior to an election and 15 days following the election,
or in violation of any time restriction established by local
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ordinance. (Civil Code section 799.10; see also Attorney
General Opinion #90-938.)
5)Prohibits a landlord from retaliating against a tenant because
of the tenant's exercise of "any right under law." (Civil
Code section 1942.5(c).)
COMMENTS : According to the author, this bill will continue
California's strong public policy preference for protecting
freedom of expression by granting to the tenants the same rights
that other Californians enjoy. Specifically, this bill would
generally prevent a landlord from prohibiting tenants from
posting political signs, so long as those signs do not exceed
six square feet in size and do not otherwise violate local,
state, or federal law, or the governing documents of a community
interest development.
Existing Law Provides Similar Protections in Other Contexts:
The Legislature has already demonstrated this policy preference
recently in two other contexts. For example, in 2003 SB 116
(Ch. 249, Stats. of 2003) provided that a resident in a mobile
home park could not be prohibited from displaying a political
campaign sign in the window or on the side of a mobile home, or
within the site on which the home is located or installed, so
long as such signs do not exceed six square feet in size or are
displayed for longer than the period of time between 90 days
prior to an election and 15 days following the election. That
same year AB 1525 (Ch. 774, Stats. of 2003) prohibited the
governing documents of a Community Interest Development (CID)
from preventing homeowners from posting noncommercial signs,
posters, flags, or banners on or in their individual properties,
except as required for the protection of public health or safety
or if the posting would violate a local, state, or federal law.
That legislation did, however, permit CID governing documents to
restrict the size of signs or posters to no more than nine
square feet, and flags or banners to no more than 15 square
feet. This bill is fully consistent with those prior measures.
Opponents have informed the Committee that the comparison with
the prior statutes is not apt because the tenant does not "own"
the property. However, this argument fails to appreciate basic
property law concepts and the fact that a tenancy is a property
right. As every first-year law student learns, a property right
is not a single, unitary right, but is rather a "bundle of
sticks" containing several distinct and potentially severable
rights: most notably the right to use, the right to enjoy, the
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right to exclude, and the right to convey. A tenancy,
historically, has generally conferred on the tenant all but the
last of these rights. It is not at all clear how one can argue
that holding all but one of these "sticks" should result in the
loss of the same rights that every other property-holding
Californian enjoys.
Background : In City of Ladue v. Gilleo, (1994) 512 U.S. 43, the
United States Supreme Court recognized that a person's ability
to post a sign on his or her own residence is a valuable right
protected by the First Amendment of the U.S. Constitution. In
that case the City of Ladue had enacted an ordinance generally
prohibiting residents from posting signs in front of their
houses, with a few specified exceptions. The Court found the
ordinance to be unconstitutional, stating:
Signs that react to a local happening or express a view on
a controversial issue both reflect and animate change in
the life of a community. Often placed on lawns or in
windows, residential signs play an important part in
political campaigns, during which they are displayed to
signal the resident's support for particular candidates,
parties, or causes. (City of Ladue , 512 U.S. at 54-55.)
?Residential signs are an unusually cheap and convenient
form of communication. Especially for persons of modest
means or limited mobility, a yard or window sign may have
no practical substitute. (City of Ladue, 512 U.S. at
55-57. Emphasis added.)
Tenant Posting Of Campaign Signs Is Arguably Constitutionally
Protected: While City of Ladue held that posting campaign signs
on one's property is a constitutionally protected right, the
First Amendment only applies to government actors and therefore
would not necessarily prohibit a private landlord from
prohibiting the use of such signs. However, the free speech
provisions of the California Constitution appear to provide such
protection. While no court has directly considered whether a
prohibition on tenants posting political signs is
unconstitutional, several California Supreme Court decisions
lean strongly in that direction, for it has repeatedly held that
the free speech provisions of the California Constitution are
much broader and more inclusive that the First Amendment and,
most important, the California constitution protects free speech
from both state and private actors. (Wilson v. Superior Court
(1975) 13 Cal.3d 652, 658; Robins v. Pruneyard Shopping Center
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(1979) 23 Cal.3d 899.)
Indeed, California's recently-retired Chief Justice, Ronald
George, strongly suggested in a concurring opinion that
prohibiting a tenant from posting political signs might well
violate the free speech provisions of the California
Constitution. In Golden Gateway Center v. Golden Gateway
Tenants Association (2001) 26 Cal.4th 1013, the court upheld the
right of a landlord to prohibit a tenants association from
distributing pamphlets under the doors of other tenants without
their express consent. In his concurring opinion, Justice
George agreed that the California Constitution did not protect
unsolicited distribution of pamphlets by a tenants association
in the interior hallways of a private apartment building, but he
wrote separately to stress that the state free speech clause
might still be enforceable against a private person who attempts
to "censor or undermine what might be viewed as another
individual's 'core' free speech rights." (Golden Gateway
Center, supra, at 1042.) Chief Justice George then gave the
following example, which is quite fitting in light of this bill:
Consider a private landlord who, under penalty of eviction,
precludes his or her tenants from displaying in the windows
of their apartments the campaign poster of a particular
political candidate supported by the tenant - or requires
the tenants to display in the windows of their homes a
poster of the candidate supported by the landlord . . .
If we were to hold . . . that Ýstate constitutional] free
speech claims require state action . . . we would
effectively remove any state constitutional obstacle to any
such action by a landlord . . . (Id. at 1042-1043,
emphasis added.)
Although the Chief Justice did not definitively state that a
tenant had such a right - since that was not the question before
the court - he cited numerous precedents for the proposition
that the California Constitution protects freedom of expression
from infringements by private as well as state actors, and he
made it very clear that he was very troubled by any construction
of the state constitutional provisions that would permit a
landlord to deny a tenant such a "core" free speech right as
posting political signs on one's residence. Moreover, even if
the state constitution does not prohibit landlords from banning
such activity, there is nothing to prevent the Legislature from
providing more protection than the minimum level required by the
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state constitution.
This Bill Permits Reasonable Limitations : This bill would not,
contrary to the claims of opponents, permit tenants to clutter
properties with overly large or offensive signs. The bill
expressly permits a landlord to prohibit the posting of any
signs that are over six square feet in size (i.e. a fairly
standard 2x3 lawn sign). The bill would also permit a landlord
to prohibit signs that would violate federal, state, or local
laws, so the signs could not be obscene or distract traffic, for
example. If the tenant were renting a unit in a community
interest development, the signs would need to comply with any
lawful rules and regulations of the association. Finally, the
tenant would be subject to any local ordinances that impose
limitations on when signs may be posted (e.g. from 90 days prior
to 15 days after an election), and if no local ordinance
restricted the time, the landlord could impose reasonable time
limits.
Finally, it must be stressed that this bill only applies to
"political signs," which are defined to mean signs relating to
an election for public office, a ballot measure, or a vote by a
public body. These restrictions would appear to rebut claims by
opponents that this bill would permit tenants to post offensive
"hate" signs. For example, a joint letter by several apartment
and realtor associations submitted a newspaper article about an
incident on the other side of the country in Amherst, New York
(near Buffalo) about a homeowner (not a tenant, curiously
enough) who posted a sign that read "Bomb Making Next Driveway,"
apparently in reference to a Mosque that had been built next
door over the homeowner's opposition. Opponents contend that
this incident "proves our case" that tenants will use this bill
to "taunt others" with "signs of hate." That anyone could argue
that this bill, restricted as it is to political signs relating
to upcoming votes or elections, would authorize such signs
strains credulity. Opponents express shock that the local
police told the Mosque that the sign was not illegal; but given
that this incident involved a homeowner, it's difficult to see
how this incident has any bearing on this bill at all, let alone
how it "proves" anyone's "case." Perhaps posting a sign like
the one posted in Amherst should be unlawful or at least
actionable, but whatever New York law may be on this matter, one
hopes that it applies equally to homeowner and tenant alike.
ARGUMENTS IN SUPPORT : According the author, this bill is simply
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about "freedom of expression," a "fundamental right going back
to the founding of our nation." The author tersely states the
issue: "Should people lose their right to freedom of expression
simply because they rent their property? The answer is no. Any
discrimination that prevents freedom of expression, based on
whether or not you own property is a denial of rights."
Tenants Together supports this bill because it believes "that
tenants have a constitutional right to post signs in their
windows and engage in other similar forms of expression."
However, because case law is not clear and definitive on this
matter, Tenants Together contends that "some landlords
unreasonably prohibit tenants from posting political signs.
Tenants, who wish to express themselves by, for example,
displaying a political sign in their window, may be putting
their tenancy at risk by doing so."
The Western Center on Law and Poverty (WCLP) and the California
Rural Legal Assistance Foundation (CRLA) believe that a tenant's
right to post signs is already protected by the First Amendment
and that Civil Code Section 1942.5 prohibits retaliation against
a tenant because of the tenant's exercise of any right under
law. "In practice, however," WCLP and CRLA write, "these
protections are illusory," largely because these rights are
nowhere expressly enumerated, "leaving a tenant to appeal to
case law to assert his or her right." This bill, WCLP and CRLA
believe, will clarify this right expressly in statutory language
and thereby ensure "that one of our most fundamental rights is
available to all Californians, regardless of whether they have
the financial resources to purchase a home."
ARGUMENTS IN OPPOSITION : Associations of apartment owners and
rental property owners, as well as the San Francisco Association
of Realtors, oppose this bill for several reasons, including a
belief that it will primarily benefit tenants who want to taunt
others with "signs of hate," as discussed above. In addition,
opponents content that if landlords cannot force the removal of
unlawful signs, the burden will fall on government entities and
that this "will be a slow, painful, and arduous process;" and
that landlords will be cited for violations committed by
tenants, which is "not appropriate or fair." Conversely, the
opponents claim that the ACLU has already prevailed over
landlords that have contractually limited the use, location,
display and appearance of non-commercial signs, so "it follows
therefore, that the issue is in search of a problem." Finally,
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opponents claim that "statutory authorization of rights to
display or post controversial signs may encourage
demonstrations, damage to property and violate all of the other
tenants right to quiet enjoyment of property," leaving the
opponents to ask: "Why would the legislature promote potential
violence?"
Author's Technical Amendments:
- On page 2, line 5, after "unit" insert: relating to any
of the following
- On page 2, delete line 6
- On page 2, delete line 21
- On page 3, line 9 delete "end" and insert: at least
REGISTERED SUPPORT / OPPOSITION :
Support
Tenants Together
Western Center on Law & Poverty
Opposition
Apartment Association, California Southern Cities
Apartment Association of Orange County
Rental Housing Association of Northern Alameda County
San Francisco Association of Realtors
San Joaquin County Rental Property Association
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334