Kansas Attorney General Opinion 2018-016

November 28, 2018
ATTORNEY GENERAL OPINION NO. 2018- 16
The Honorable Blake Carpenter
State Representative, 81st District
2425 N. Newberry, Apt. 3202
Derby, Kansas 67037
Re: 	Elections—Voting Places and Materials Therefor—Placement of
Political Signs during Election Period; Constitutionality
Constitution of the State of Kansas—Bill of Rights—Liberty of Press
and Speech; Libel; Placement of Political Signs
Constitution 	of 	the 	United 	States—Amendments—Freedom 	of
Speech; Placement of Political Signs
Synopsis: 	K.S.A. 	2018 	Supp. 	25-2711 	does 	not 	abridge 	the 	freedom 	of
speech and, therefore, is not subject to scrutiny under the First
Amendment of the United States Constitution. Cited herein: K.S.A.
2018 Supp. 25-2711; U.S. Const., Amend. I, U.S. Const., Amend.
XIV; Kan. Const., Bill of Rights, § 11.
* 	* 	*
Dear Representative Carpenter:
As State Representative for the 81 st District, you request our opinion regarding
whether, in light of the United States Supreme Court’s decision in Reed v. Town
of Gilbert, Ariz., 1 K.S.A. 2018 Supp. 25-2711 violates the First and Fourteenth
Amendments to the Constitution of the United States.
1 ___ U.S. ___, 135 S.Ct. 2218 (2015).

The Honorable Blake Carpenter
Page 2
The First Amendment states, in pertinent part, that “Congress shall make no law .
. . abridging the freedom of speech or of the press.”2 	“The First Amendment of
the United States Constitution applies to the states through the Fourteenth
Amendment.”3
During the 2015 legislative session, the Kansas Legislature enacted K.S.A. 2018
Supp. 25-2711, which states:
No city or county shall regulate or prohibit the placement of or the
number of political signs on private property or the unpaved right-
of-way for city streets or county roads on private property during the
45-day period prior to any election and the two-day period following
any such election. Cities and counties may regulate the size and a
set-back distance for the placement of signs so as not to impede
sight lines or sight distance for safety reasons.
On June 18, 2015, the United States Supreme Court determined in Reed that the
Town’s sign code established content based restrictions on speech that could not
withstand strict scrutiny. 	Because K.S.A. 2018 Supp. 25-2711 does not burden
or restrict the exercise of speech, whether commercial or noncommercial, it is not
subject to the same review as the sign code in Reed. 	K.S.A. 2018 Supp. 25-
2711 does not violate the First and Fourteenth Amendments to the United States
Constitution.
Reed v. Town of Gilbert
The Town of Gilbert, through a comprehensive code, prohibited the display of
outdoor signs without a permit, with 23 exempt categories. 4 The display of a sign
was subject to different size, time, number and location restrictions, depending
on the category into which it fell. The Court deemed three categories relevant for
its review:
“Ideological Signs,” defined as any “sign communicating a message
or ideas for noncommercial purposes that is not a Construction
Sign, Directional Sign, Temporary Directional Sign Relating to a
Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned
or required by a governmental agency;”
2 The Kansas Constitution contains a similar provision in Section 11 of the Kansas Bill of Rights.
(“The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their
sentiments on all subjects, being responsible for the abuse of such rights; and in all civil or
criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that
the alleged libelous matter was published for justifiable ends, the accused party shall be
acquitted.”) 	The First Amendment and Section 11 are “generally considered coextensive.”
Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 37 (2001); State v. Russell, 227 Kan. 897, 899
(1980).
3 Prager, 271 Kan. 1, 33 (2001) (internal citations omitted).
4 Reed v. Town of Gilbert, Ariz., ___ U.S. ___, 135 S.Ct. 2218, 2224 (2015).

The Honorable Blake Carpenter
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“Political Signs,” which included any “temporary sign designed to
influence the outcome of an election called by a public body;” and
“Temporary Directional Signs Relating to a Qualifying Event,” which
was any “Temporary Sign intended to direct pedestrians, motorists,
and other passersby to a ‘qualifying event.’” “Qualifying Event” was
defined 	in 	the 	code 	as 	any 	“assembly, 	gathering, 	activity, 	or
meeting 	sponsored, 	arranged, 	or 	promoted 	by 	a 	religious,
charitable, community service, educational, or other similar non-
profit organization.” 5
The constitutionality of the code was challenged by a church that placed “15 to
20 	temporary 	signs 	around 	the 	Town, 	frequently 	in 	the 	public 	right-of-way
abutting the street,” directing persons to the locations at which it would conduct
church services. 6 The church was cited twice for exceeding the time limitation for
posting the signs and once for not including the date of one of its services. 7
In determining the appropriate level of scrutiny to which the Town’s sign code
would be subjected, the Supreme Court stated:
The 	First 	Amendment, 	applicable 	to 	the 	States 	through 	the
Fourteenth Amendment, prohibits the enactment of laws “abridging
the 	freedom 	of 	speech.” 	Under 	that 	Clause, 	a 	government,
including a municipal government vested with state authority, “has
no power to restrict expression because of its message, its ideas,
its subject matter, or its content.” 	Content-based laws—those that
target 	speech 	based 	on 	its 	communicative 	content—are
presumptively 	unconstitutional 	and 	may 	be 	justified 	only 	if 	the
government 	proves 	that 	they 	are 	narrowly 	tailored 	to 	serve
compelling state interests.
Government regulation of speech is content based if a law applies
to particular speech because of the topic discussed or the idea or
message expressed. 	This commonsense meaning of the phrase
“content based” requires a court to consider whether a regulation of
speech “on its face” draws distinctions based on the message a
speaker conveys. 	Some facial distinctions based on a message
are obvious, defining regulated speech by particular subject matter,
and 	others 	are 	more 	subtle, 	defining 	regulated 	speech 	by 	its
function or purpose. 	Both are distinctions drawn based on the
5 Reed, 135 S.Ct. at 2224-25.
6 Id. at 2225.
7 Id.

The Honorable Blake Carpenter
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message a speaker conveys, and, therefore, are subject to strict
scrutiny. 8
“A law that is content based on its face is subject to strict scrutiny regardless of
the government’s benign motive, content-neutral justification, or lack of ‘animus
toward the ideas contained’ in the regulated speech.” 9
The Court found:
The Town’s Sign Code is content based on its face. 	It defines
“Temporary Directional Signs” on the basis of whether a sign
conveys the message of directing the public to church or some
other “qualifying event.” 	It defines “Political Signs” on the basis of
whether a sign’s message is “designed to influence the outcome of
an election.” 	And it defines “Ideological Signs” on the basis of
whether a sign “communicat(es) a message or ideas” that do not fit
within the Code’s other categories. 	It then subjects each of these
categories to different restrictions.
The restrictions in the Sign Code that apply to any given sign thus
depend entirely on the communicative content of the sign. If a sign
informs its reader of the time and place a book club will discuss
John 	Locke’s 	Two 	Treatises 	of 	Government, 	that 	sign 	will 	be
treated differently from a sign expressing the view that one should
vote for one of Locke’s followers in an upcoming election, and both
signs 	will 	be 	treated 	differently 	from 	a 	sign 	expressing 	an
ideological view rooted in Locke’s theory of government. 	More to
the point, the Church’s signs inviting people to attend its worship
services are treated differently from signs conveying other types of
ideas. 	On its face, the Sign Code is a content-based regulation of
speech. 	We thus have no need to consider the government’s
justifications 	or 	purposes 	for 	enacting 	the 	Code 	to 	determine
whether it is subject to strict scrutiny.10
The town asserted two governmental interests in support of the sign code’s
classifications: 	preserving the Town's aesthetic appeal and traffic safety. The
Court determined that, even “[a]ssuming for the sake of argument that those are
compelling governmental interests, the Code’s distinctions fail as hopelessly
underinclusive.” 11
K.S.A. 2018 Supp. 25-2711
8 Id. at 2226-27 (internal citations omitted; emphasis added).
9 Id. at 2228 (internal citation omitted).
10 Id. at 2227 (emphasis added).
11 Id. at 2231.

The Honorable Blake Carpenter
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As previously noted, the First Amendment prohibits the enactment of laws
“abridging the freedom of speech.” 	K.S.A. 2018 Supp. 25-2711 provides that
“[n]o city or county shall regulate or prohibit the placement of or the number of
political signs” in the designated locations during the 45-day period prior to any
election and the two-day period following the election. 	The statute does not
burden, prohibit, require, or restrict the expression of any speech whatsoever.
Nor does it require local jurisdictions to regulate speech differently based on
content. 	Generally, First Amendment challenges to a governmental entity’s
actions are based on its attempts to restrict or compel speech. 12 	But here, the
state statute on its face does not restrict or otherwise regulate speech at all;
rather, it restricts and regulates the authority of cities and counties to enact or
enforce their own local restrictions on speech. 13 	Thus, the state statute is not
implicated by the Reed decision.
We recognize that the manner in which local jurisdictions elect to comply with the
requirements of K.S.A. 2018 Supp. 25-2711 could present First Amendment
concerns similar to those addressed in Reed but it also certainly is possible for
local jurisdictions to comply with both the state statute and the First Amendment.
For example, a local jurisdiction could elect to enforce no local sign regulations at
all or could enforce regulations that do not regulate or prohibit the placement of
or the number of any signs, regardless of content, in the designated locations
during the 45-day period prior to any election and the two-day period following
the election. 	Or if the local jurisdiction elects to treat political speech differently
than other speech, the local jurisdiction may be able to show that its ordinance is
narrowly tailored to serve a compelling governmental interest. 	Thus, to the
12 McCullen v. Coakley, ____ U.S. ____,134 S.Ct. 2518 (2014) (statute made it a crime to
knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any
place, other than a hospital, where abortions were performed; “Consistent with the traditionally
open character of public streets and sidewalks, we have held that the government's ability to
restrict speech in such locations is ‘very limited.’”); Sorrell v. IMS Health, Inc, 564 U.S. 552,
(2011) (law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing
practices of individual doctors); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) (city
ordinance prohibited bias-motivated disorderly conduct; “The First Amendment generally prevents
government from proscribing speech. . .”); Burson v. Freeman, 504 U.S. 191 (1992) (statute
prohibited solicitation of votes and displays or distributions of campaign materials within 100 feet
of polling place; statute did not address other categories of speech, such as commercial
solicitation, distribution, and display); Simon & Schuster, Inc. v. Members of New York State
Crime Victims Bd., 502 U.S. 105 (1991) (Son of Sam law placed financial burden on speech; “A
statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on
speakers because of the content of their speech.”); Eu v. San Francisco County Democratic Cent.
Committee, 489 U.S. 214 (1989) (state election code prohibited official governing bodies of
political parties from endorsing or opposing candidates in primary elections); Police Dept. of
Chicago v. Mosley, 408 U.S. 92 (1972) (peaceful picketing on the subject of a school's labor-
management dispute was permitted, but all other peaceful picketing was prohibited; “First
Amendment means that government has no power to restrict expression because of its message,
its ideas, its subject matter, or its content.”).
13 See Kan.Const. Art. 12, § 5 (legislature may regulate cities through uniform enactments);
Board of County Com’rs of Sedgwick County v. Noone, 235 Kan. 777, 784 (1984) (counties are
subject to specific statutory limitation and restriction).

The Honorable Blake Carpenter
Page 6
extent the content-based analysis in Reed may apply, it would operate to
invalidate an unconstitutional local ordinance or enforcement regime, not the
state statute.
Rather than restricting speech, K.S.A. 2018 Supp. 25-2711 seeks to protect
political speech. 	It does not require that local jurisdictions treat other types of
speech differently based on their content or otherwise. 	“[P]olitical speech in the
course of elections [is] the speech upon which democracy depends.” 14 	Because
K.S.A. 2018 Supp. 25-2711 does not abridge the freedom of speech, it is not
subject to scrutiny under the First Amendment. 	The statute does not violate the
First Amendment of the United States Constitution.
Sincerely,
Derek Schmidt
Kansas Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS:sb
14 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (Kennedy, J., dissenting).
See also Citizens United v. FEC, 588 U.S. 310, 339-40 (2010), quoting Eu v. San Francisco
County Democratic Central Comm., 489 U.S. at 223 (“The First Amendment ‘has its fullest and
most urgent application’ to speech uttered during a campaign for political office.”)