Is it illegal to paint a political message on the side of a makeshift hay loft and leave it in your cattle pasture? If you live in Gaines Township, Mich., apparently, yes. Vern Verduin did that, painting “Marxism/Socialism = Poverty & hunger” and “Obama’s ‘mission accomplished.’ 8% unemployment. 16 trillion debt” on the side of two tractor trailers on his 40-acre farm.
For doing so, Verduin has now landed in court, having run afoul of a local zoning rule that prohibits political signs larger than 20 square-feet in size. The sides of the trailers in which Verduin keeps hay for his beef cattle measure more than that, displaying his message to passersby on the M-6 freeway his field abuts.
But the township allows for commercial signs up to 32 square-feet, leading Verduin’s lawyer to quip that the township apparently considers advertising “an Egg McMuffin more important than political speech.” The attorney, Howard Van Den Heuvel, argues that this is a clear violation of Verduin’s First Amendment rights: “The Constitution requires ‘strict scrutiny’ if you want to limit free speech,” and the regulation has to occur in the “least obtrusive way possible.” By tightly regulating what kind of political sign Verduin can place on his own land, Van Den Heuvel believes, the township invaded the wide space usually given to free speech. “This is an inherent constitutional violation,” he says.
Van Den Heuvel explains to National Review Online that Gaines Township’s zoning enforcement is “complaint driven,” and an anonymous complaint prompted Verduin’s first warning. Following a named complaint, Verduin received a citation and a fine for having broken the zoning ordinance. Because such violations are rarely reported, Van Den Heuvel suggests that it could have been a private citizen’s attempt at “content-based censorship” of the views on Verduin’s sign. Further, Verduin was surprised to receive a warning based on the anonymous complaint; he’s served 34 years as a volunteer firefighter, and his lawyer explains that in his town-government experience, anonymous complaints only get “the circular-file treatment.”
Last Friday, Verduin appeared in court to contest the violation. The district judge seemed skeptical of the rule, but granted a request by the township to have ten more days to assemble evidence. Van Den Heuvel is quite optimistic that the judge will rule in their favor at the final April 4 hearing, saying, “I think he understands what we’re saying,” and giving his client “excellent chances” in court.
The judge, Steven Servaas, seemed sympathetic at the first hearing, expressing serious concerns over the township’s expansive definition of what speech it can regulate. “My own feeling,” he said, “is that you have to be pretty careful about what you let the government stop you from saying.” He got the township’s attorney to admit that a similarly sized sign with as anodyne a message as “I Love America” would be an unacceptable political display on private land, even if it weren’t visible from a road. The government attorney further explained that “there is really no provision under the zoning ordinance that would allow a 300-square-foot sign that says the message that it says, or a commercial one, other than a billboard.” Van Den Heuvel, however, believes there’s one clearly more important statute that gives Verduin the right to speak on his own property: “The Constitution is clear. What do we value highest? We want a vigorous political dialogue, no matter what side you’re on.”
If found “not responsible” — like getting off of a traffic ticket — Verduin won’t have to pay the small fine and can keep his sign, but more important, the township will probably give up trying to enforce the rule anywhere. It would take a federal court to strike down the statute, but a judge’s ruling here could render it practically invalid. “There’s only one judge in the district,” Van Den Heuvel explains,” and while “every ticket is unique,” the township would expect future violators to be found not responsible, too.
Van Den Heuvel got involved in the case as a participating attorney for the Rutherford Institute, a Virginia-based foundation with lawyers all over the country who protect citizens in civil-liberties cases. He’s recently heard from the ACLU, which is considering filing a brief on behalf of Verduin’s right to free speech in a cattle field. This isn’t the first time Van Den Heuvel’s defended First Amendment rights in a rather malodorous environment: In 2002, he also worked on a case in which health regulators tried to force a group of Old Order Amish to install septic systems against their religious beliefs.