Faced with a legal challenge over an East Texas homeowner’s Ten Commandments lawn sign, the Texas Transportation Commission is considering changes to a rule that currently prohibits some people from expressing themselves through signs on their property.
The proposal — which the commission will vote on after a public comment period closes July 14 — would address a possibly unconstitutional anomaly in Texas law that provides more protection for business advertisements and campaign placards than for signs displaying personal opinions.
The topic received little attention until this past April, when the Texas Department of Transportation sent a letter to Jeanette Golden telling her to remove the Ten Commandments sign she had placed on her lawn next to Highway 21 in East Texas, near Hemphill. The poster ran afoul of a state law, passed to comply with the Federal Highway Beautification Act, that prohibits signs and billboards within certain distances of interstate or primary highways unless they’re in areas defined as commercial or industrial.
The law makes several exceptions, including for messages advertising activities that take place on the property where the sign is posted — in other words, on-premise business signs. That has the unusual effect of giving wider latitude to commercial messages than to regular speech. Typically, the opposite is true: Judges have consistently held that commercial speech has less protection under the First Amendment.
The law also includes an exception for the signs that people place on their front lawns to endorse candidates during elections. That puts the government in the position of approving some forms of political speech, but not others.
The rule change would level the playing field by adding an exception for non-commercial, non-election-related signs smaller than 96 square feet on a person’s own property. Until then, Golden can put up lawn signs for political candidates or to advertise a business she runs out of her house, but not to express her views on religion or any other issue.
Michael Berry, a lawyer at the Liberty Institute, a nonprofit law firm that focuses on religious freedom cases, offered to represent Golden after reading about the situation in the news. To him, prohibiting Golden’s sign presented an obvious violation of federal and state religious exercise laws.
But even apart from religion, he said, the law raises freedom of speech issues by making exceptions for certain kinds of messages.
“They’re targeting particular types of speech,” he said. “They have a scheme that allows permits for commercial speech to be placed on our highways, but not for non-commercial or private speech. Why is it that commercial speech is given some special status?”
TxDOT evidently decided that Berry had a point. In an email, department spokeswoman Veronica Beyer said, "The current on-premise exemption does not exempt non-commercial on-premise signs from the permitting process, which made it problematic constitutionally."
The Texas Supreme Court upheld the constitutionality of the sign law in 2003, ruling that it didn’t discriminate against non-commercial speech because both businesses and individuals are allowed to advertise on-premise activities. But that case involved a sign that wasn’t on the property where the owner lived. The court’s ruling suggested that if it had been, prohibiting the message might violate the fundamental right to express oneself in one’s home.
Berry said the new rule should allow Golden to leave the Ten Commandments sign on her lawn.
“Assuming that it goes through without any substantial changes, I think the proposed rule change, if it’s enforced properly, would allow her to have her sign free from any interference,” he said.