In the attached letter opposing the proposed changes, the ACLU-NC states that the legislation has would seriously restrict the free speech rights of San Franciscans.

The letter refers to a Supreme Court decision upholding anonymous sign posting. "Recently, in overturning an Ohio statute that prohibited the distribution of anonymous campaign literature, the United States Supreme Court noted that Œanonymous pamphleteering isŠan honorable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of the majority,'" wrote Alan Schlosser, ACLU-NC Managing Attorney.

March 1, 1999

Housing and Social Policy Committee
S.F. Board of Supervisors
401 Van Ness Avenue
San Francisco, CA 94103

Re: Proposed Sign Posting and Handbilling Regulations

Dear Committee Members:

I am writing this letter on behalf of the American Civil Liberties Union of Northern California. We understand that your Committee is considering revisions to sections of the San Francisco Municipal Code regulating the posting of signs, handbills and banners, and that a proposed Ordinance is set for hearing before your Committee on March 2, 1999. I apologize that scheduling conflicts make it impossible for me to appear before your Committee on that date. However, we believe that the proposed Ordinance has a number of significant legal and practical problems that will impact on the free speech rights of San Franciscans. Accordingly, I am writing you this letter to share our concerns.

The posting of notices on utility poles is a form of expression protected by the First Amendment. Significantly, it is a means of expression that is particularly important to grassroots community groups and citizens of moderate means. Sections 184.57(c)(7) and 184.57(d)(2)(vi) of the Ordinance require that signs posted on lamp posts and utility poles bear the name and address or telephone number of the person responsible for posting. This is not necessary in view of the registration requirements of the Ordinance. Requiring that names and addresses be placed on signs infringes on a constitutionally recognized right to engage in anonymous speech. This right is in particular need of protection when the content of the posted sign bears a political message. "Since disclosure requirements undoubtedly tend to restrict the freedom to distribute and consequently deter free speech, the latter right encompasses the right to remain anonymous." Schuster v. Imperial County Municipal Court, 109 Cal. App. 3d 887, 892 (1980). Recently, in overturning an Ohio statute that prohibited the distribution of anonymous campaign literature, the United States Supreme Court noted that "anonymous pamphleteering is. . .an honorable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of the majority." McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357 (1995).

The City's legitimate goal of eliminating "unsightly clutter, ensur(ing) traffic safety, and provid(ing) an opportunity for a greater number of persons to communicate" can be achieved without burdening the right to engage in anonymous speech. Under section 184.59(b), those who post 25 or more signs must first provide the Department of Public Works with a name, telephone number and address and obtain a registration number. Under section 184.57(7)(vi), the

registration number must appear on the posted sign. Because the Department has a record of who it assigns registration numbers to, placing this number alone on the sign adequately protects the City's interest in identifying sign-posters and holding them accountable for removal of the sign.

Second, section 184.71, which requires that any person seeking to distribute handbills "upon premises in the City" first register with the Department, is an unprecedented burden upon a time-honored populist mode of communication. Unlike parades and demonstrations, handbilling is not so inherently intrusive or disruptive that it requires prior registration. Such a requirement not only stifles spontaneous expression and speech intended to deal with immediate issues, Rosen v. Port of Portland, 641 F.2d 1243, 1249 (1981), it may lead to absurd results. Under proposed section 184.71, the imposition of civil and criminal penalties could be imposed upon someone who neglects to trek downtown to register prior to distributing handbills to publicize a yard sale or lost cat. Also, this requirement would appear to require registration of each person who seeks to distribute campaign literature door to door, and, together with the administrative fees, would significantly deter this means of communication.

Third, the exemption in proposed section 184.57(f) for government signs from rules regulating the size, height and posting period is troubling in that it borders on an impermissible content-based distinction. Foti v. City of Menlo Park, 146 F.3d 629, 637 (9th Cir. 1998). The City's goal of eliminating unsightly clutter is legitimate, but it is simply unfair to place the burden of achieving that goal on the shoulders of private speakers while allowing the government, with its superior resources, free reign. In fact, the exemption diminishes credibility for the City's rationale for enacting the guidelines in the first place. City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994).

Finally, how does the City intend to enforce proposed section 184.57(c)(1), which imposes a one-sign per post or pole limitation in non-commercial areas? The same limitation is found in current section 657(b)(1). The provision creates the potential for a dangerous "first-come, first-served" practice during political campaigns whereby the first candidate to enter the field may legitimately monopolize entire neighborhoods with his or her signs. Alternatively, nothing in the current or proposed Ordinance prevents a sign-poster who desires to utilize a particular post or pole from removing a pre-existing sign. This likely scenario will inevitably result in the very activity the City seeks to avoid - littering.

We urge you to give serious consideration to the points raised in this letter. Please feel free to contact me if I can be of any other assistance.

Very truly yours,

Alan L. Schlosser
Managing Attorney