Roscoe resident can keep political paver message in yard

Alycia Dioneda contributed to this reporting.

A Winnebago County homeowner no longer faces fines over a large Trump sign displayed on their lawn at Elevator Road and Hamborg Road in Roscoe. Staff for Winnebago County's Regional Planning & Economic Development had deemed the sign illegal because, at over 16 feet across, it exceeds the permitted size limit and was erected more than 60 days before the election. The homeowners argued that it shouldn't be considered a sign but simply a landscaping project and claimed the county’s action violates their right to political speech. By the end of July, the County had quietly dropped the case, though without conceding to the homeowners' interpretation of the Constitution.

James and Candice Holder took to Facebook to voice their opposition to the Winnebago County ordinance they claim infringe on their First Amendment rights. The couple, who reside on Ridgecrest Drive, said the county was threatening them with fines over the red paver design they installed in their back yard on July 4, 2024. While the front of their house is on Ridgecrest, the back yard is on Hamborg Road, an important street in that part of unincorporated Winnebago County.

"The county is supposed to issue me a ticket and start the fines on Monday... The fines can be up to $500 a week," James Holder posted on July 11.

The Note

The Holders received a handwritten notice on July 10, 2024, from the Winnebago County Building and Zoning Department, warning them of potential fines if they did not remove the display. County employee Lisa Mihm left a typewritten copy of the definition of "sign," from Winnebago County Codes, as well as her business card and this emphatic handwritten note:

To Peterson and holder 7/10/24

A sign is a name, identification, display, illustration, or attention getting device which is affixed or painted upon a building or other outdoor surface or lot .

As such, "Trump" sign must be removed by July 15. 2024 since signs are not allowed on residential "lots" and political signs are limited to "16" sq ft. and NO earlier than 60 days before election. If sign is not removed by said date, fines up to $500.00 per week may be assessed. Code attached

-2nd Time-

LAST WARNING

If we receive another complaint about political signage displayed prior to "allowance time frame" or "size," a ticket will be issued rather than warning.

But in the end, the fines never came.

The Holders argued that the county's definition of their landscaping project as a sign is wrong. And restricting their yard display, particularly one with political content, violates their First Amendment rights. They also say it's debatable whether their display should even be considered political. Though it says "TRUMP," it doesn't say "Vote for Trump for President." An avid bridge player could celebrate her success with the same display. The sign ordinance talks about free-standing, projecting, and attention-getting signs, but the Holders says that shouldn't mean flat messages on the lawn. The definition of "sign" may be in the County ordinances but it isn't in Webster's Dictionary.

What's your sign?

The county defines a sign as "a name, identification, description, display, illustration or attention-getting device which is affixed to or painted or represented directly or indirectly upon a building or other outdoor surface or lot, and which directs attention to a person, business, product, service, place, organization or entertainment." Flags aren't considered signs. But from Lisa Mihm's underlined note, a name affixed on an outdoor lot seems to fit the definition.

Holder objects to that definition and distinguishes between an ordinance and a law. "The Winnebago County building and zoning department have county ordinances in place that directly infringe on our First Amendment rights granted by the Constitution of the United States of America," Holder continued in his post. "This is our landscaping project we put together on July 4, 2024. On July 10, we received this notice threatening us with an ordinance violation and fines if not removed. They consider this a sign, and this county restricts political content differently, which is unconstitutional. If it is a 'sign,' it is protected by the First Amendment as determined by multiple courts, including the Supreme Court of the United States."

According to the Winnebago County Planning and Zoning Division of the RPED Department, non-commercial signs don't always require a permit if they adhere to specific limitations. But the Holder's complaint is about enforcement as well as the ordinance. With many other signs around the neighborhood, many of them posted illegally on telephone poles, they claim that only Trump signs are being targeted.  Two other neighbors have been confronted over Trump signs by the Permits department of Winnebago County, posted outside the 60 day window allowed by the sign ordinance.

Maintaining that the First Amendment shields their exhibit, the Holders reached out to the public for support in their fight against what they perceive as an unconstitutional ordinance.

The appeal got attention. On July 12, trustee Brad Lindmark, who represents part of Roscoe on the Winnebago County Board, told us, "We are looking into this and will abide by the laws and ordinances regarding this matter. This will not decided by political bias on either side. We as a County, State, and Country must get by political bias and work together!"

The County backs down

Finally, on July 31, James Holder said on Facebook, "Our battle with Winnebago county has come to an end. The Trump pavers ARE protected by the First Amendment of the Constitution. We've met a lot of great people since this started. Thank you to everyone that showed their support and even stopped to introduce themselves when we were outside."

But was Winnebago County admitting their ordinance was unconstitutional, or simply deciding not to pursue the case?

When we asked James Holder what the County had told him specifically, he didn't tell me and correctly predicted that nobody from the County would. "I don't think the state's attorney is going to say anything publicly," he said in an email. "I don't think anyone from the county will.... If I had the money to drag them into court to force them to change the ordinances, I would. That's not the case, though."

On August 3, trustee Brad Lindmark told us only that, "The County will not pursue any further action or fines in regards to the Trump sign... You will need to speak to States Attorneys office for details."

We reached out to the Winnebago County Planning and Zoning Division of the RPED Department. They gave us references to the relevant ordinances, and pointed out that Boone County and the City of Rockford have similar restrictions on political signs. On August 5, they politely emailed, 'We do not generally comment on legal matters. As such, you can call the SA office, civil division, to see if they wish to comment."

We reached out to attorney Lafa Vaughn, Chief of Civil Bureau in the Winnebago County State's Attorney's office, several times by email and phone, but she simply replied, 'We don’t have any comments regarding this matter." 

Holder says, "I don't want the focal point of this whole situation to be about Trump. Obviously that's who I support for president. It boiled down to a First Amendment issue. If someone had this in their yard and it said Biden whether I like it or not they should have the right to do it. I can drive by and not look at it. I can take a different route home from work if it bothers me that bad. But if it is protected by the First Amendment they should be able to do it."

Holder specifically cites a 2015 Supreme Court decision, Reed v. Town of Gilbert, where the court ruled that the town's Sign Code’s provisions were "content-based regulations of speech that do not survive strict scrutiny.... To pass strict scrutiny, the legislature must have passed the law to further a 'compelling governmental interest,' and must have narrowly tailored the law to achieve that interest." That is, the government has to have a good, specific reason to limit freedom of speech.

What does the Constitution say?

Does this mean that the whole county sign ordinance is unconstitutional? For example, couldn't Winnebago County ticket and fine the owner of a 80-foot flashing non-emergency sign that kept the neighbor's horses and babies awake? We asked about that scenario in emails to trustee Brad Lindmark, homeowner James Holder, and Lafa Vaughn in the State's Attorney's office, and none of them responded.

However, others have weighed in. Lynn Greenky, an emeritus professor at Syracuse University, agrees that Reed v. Town of Gilbert probably protects the Holders' message. She was trained as a lawyer and wrote the book When Freedom Speaks: The Boundaries and the Boundlessness of our First Amendment Right. She says, "Any attempt to limit the expression of the Holders' political speech by the Winnebago County building and zoning department is unconstitutional unless the zoning department can provide evidence that it has a compelling interest within its governmental powers to restrict the speech and the means it uses to assert that power is narrowly tailored to achieve that purpose."

Attorney Oliver Morrisey agrees that "political expression is a protected right, and homeowners should have the freedom to express their views." But he cautions, "This right isn’t absolute and can be balanced against community interests, such as aesthetics and safety. Given the size and visibility of this particular display, it could be argued that it impacts the visual environment and potentially distracts drivers on busy roads."

County board member Angie Goral told WIFR that “If the neighbors have complained about it, then he needs to do something in regards to it... If you want to be a good neighbor, then you stay away from [religion and politics] and don’t aggravate them in your neighborhoods.”

Professor Greenky might have some personal sympathy with Goral's position, but since the Constitution doesn't talk about neighborliness, her legal opinion is, "In this case, while the message might be disturbing to some, it is not obstructing views, hampering traffic, or encouraging violence, so there is likely no compelling interest the department can assert, which requires the message be removed."

However, neither Morrisey nor Greenky have actually seen the sign: he's based in Sydney, Australia and she's in Syracuse, New York.

Why do we need a sign ordinance anyway?

Does Winnebago County have a compelling reason to limit the size of political yard signs and how long they can be displayed? Winnebago County's sign ordinance says some of its purposes are "to promote and protect the health, safety and welfare of the County by ensuring the compatibility of signs with surrounding architecture and land uses," "to discourage an excessive number of signs and unsightly, dissimilar and inappropriate signs," and "to protect the public from hazardous conditions that result from the indiscriminate use and placement of signs, structurally unsafe signs, signs which obscure the vision of pedestrians or motorists, and signs which compete or conflict with necessary traffic signals and warning signs."

That's why Winnebago County usually doesn't allow any large, permanent signs, such as commercial signs, without a permit. And it doesn't allow them at all in residential areas. Political signs, though they are still regulated, are one type that is exempt from permits. Other exemptions include temporary garage sale signs, directional signs, construction signs, parking lot signs, and window signs. Also exempted: flags, "Beware of Dog," and terse nameplate signs such as "Perry Mason, Attorney at Law" ("one non-internally illuminated wall or window (1) nameplate sign not exceeding two (2) square feet").

Though political signs are allowed where commercial signs aren't, according to the Winnebago County Code 22.8.16, they must be "no more than sixteen (16) square feet in area on each side." And "when such signs refer to an election or referendum, such signs shall be posted no earlier than sixty (60) days prior to, and be removed no later than ten (10) days after the election or referendum to which the sign refers."

But instead of seeing the sign ordinance as an exemption that allows political signs where signs aren't ordinarily allowed, the Holders see its very existence as a restriction on their free speech. So James Holder says, "I really hope someone from the county sits down with some attorneys that actually know and respect the Constitution and rewrite all the ordinances. Other people that haven't and will never stand up for their rights will be held to the current ordinances unless changed."

James Holder told us, "I want what I think most of us want. I want to live my life and be left alone by the government. On the local level and on the federal level. If we want to put a sign up or something like I have in my yard, leave us alone. It's not vulgar. It's not hurting anyone. It's not obstructing the view. And most importantly I, and the courts that have ruled on this, feel that it's protected by the First Amendment."

Ironically, according to Section 1-14, one of the ways the County can punish code violators is by putting up a sign that shames them for violating the code - a "scarlet letter," so to speak. But at this point, it looks like the only scarlet letters the Holders will have are the five they placed themselves.  Vandals have tried to move them twice, but Holder says, "Those paver stones are heavy so they didn’t get very far."

Since Election Day is November 5, 2024, political signs can be put up legally after September 5, 2024. So the Holders invited people via Facebook to stop by to pick up yard signs (smaller than 16 feet across) on Saturday, September 7, 2024. Hundreds indicated they were interested.

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