Judge’s ruling may allow a big ‘Palin for President 2012’ sign to rise in San Carlos

In the not too distant future, a sign that says “Palin for President 2012” could pop up along Highway 101 in San Carlos.

That’s because a federal judge this week ordered the city to stop enforcing part of its sign ordinance, in response to a lawsuit that contends the law violates free speech rights.

The lawsuit was filed last month by Nevada resident Jeffrey Herson, who applied to erect a large sign near Highway 101 with the Sarah Palin message on one side and a “No on Measure C, November 4, 2012” message on the other side.

Herson’s suit alleges that in denying his application Sept. 4, the city essentially offered greater protection to commercial speech than political speech in violation of the First and 14th amendments to the U.S. Constitution.

The sign ordinance restricts the size of political signs to 32 square feet or smaller unless the city’s architectural review committee approves a larger size. Herson proposed building a pole sign with a face 14 feet high and 48 feet across.

The ordinance also says political signs cannot be erected sooner than 60 days before an election and must be taken down seven days after the election.

The lawsuit, which also lists California-based East Bay Outdoor Inc. as a plaintiff, points out that other types of signs, including those indicating the location or direction of a place and “community activity signs,” do not have size or time limitations.

“San Carlos treats political speech differently than other speech,” said Alan Herson, the plaintiff’s father and the attorney representing him in the case. “It has it backwards. Political speech is the most protected speech under the First Amendment.”

In a temporary restraining order issued Monday, U.S. District Court Judge Marilyn Hall Patel said the lawsuit is likely to succeed on the claim that the city’s ordinance “singles out political speech for special treatment and appears to place greater burdens on it than on commercial speech and non-political noncommercial speech.”

Patel also said the city appears to grant government officials “unfettered discretion to determine who may or may not speak by failing to impose sufficient objective standards and by allowing for an unlimited time for the city’s review.”

The judge ordered the city to stop enforcing restrictions on the size or timing of political signs and to accept Jeffrey Herson’s application.

He submitted a second application this week, and the city is reviewing it, said David Rosenbaum, an attorney for the city.

Rosenbaum said the lawsuit attempts to “confuse the issue of medium and content.” He said the city requires permits for large signs to make sure they are built properly, but is not interested in regulating the message.

“What we’re saying is, no, you need to have a building permit process, to make sure your pole sign is adequately safe,” Rosenbaum said. “And frankly, if you want to put your political speech on it, we don’t care.”

Staff on Monday will ask the city council to declare an emergency 45-day ban of new signs until the constitutional issues can be worked out.

“In lieu of winding up in further battles with others, let’s stop, take a deep breath, figure out what’s right and wrong,” Rosenbaum said. “If we’ve made a mistake, we don’t want to make more mistakes, so we need to stop things now.”

Rosenbaum declined to say whether the temporary ban would prevent Jeffrey Herson from building his sign.

Alan Herson said the city is insisting the latest application be heard by its planning commission, which doesn’t meet again until Nov. 2, the day before the local election. He said the city is “ignoring” the judge’s order and filed a motion Wednesday asking the judge to hold it in contempt of court.

Asked about the moratorium the council will consider Monday, Alan Herson said, “I think some of those council members better consult with an attorney first or they’re going to be in jail.”

Alan Herson has argued against sign ordinances in other jurisdictions, including Oakland and Richmond and several cities in Oregon. He refused to say why his son wants to erect a sign supporting former vice presidential candidate Sarah Palin or why he chose San Carlos.

“He wants to put up a sign in San Carlos,” Alan Herson said. “Everything else is irrelevant.”

E-mail Shaun Bishop at sbishop@dailynewsgroup.com.