Milton settles free speech suit over Trump signs

Even the most provocative political signs can now be full frontal year-round in Milton after the town recently changed its code to end a lawsuit filed by the ACLU.

In May, the American Civil Liberties Union of Delaware sued Milton in Chancery Court after a town code enforcement officer ordered a resident to remove four signs in her front yard that were critical of President Donald Trump.

Without admitting fault, the town revised its code last week and paid $5,000 to the ACLU in legal fees, according to Town Manager Kristy Rogers.

"The town does not admit its previous code was unconstitutional," she said Thursday, the same day the settlement agreement was signed.

Previously, town code prohibited political speech (in sign form) outside of election season. Other signs, such as real estate signs, church announcements and memorials were permitted year-round.

The revised ordinance promotes residents' free speech rights while serving the town's interests of "avoiding obstructed views, distracted motorists and tripping hazards," according to a town statement.

Under the new provisions, a property may display four "temporary" signs at any time regardless of content, as long as the signs comply with size and location restrictions. "Temporary" signs are defined as signs not permanently affixed or staked in the ground.

The ACLU persuaded the town to make other changes for the ordinance to pass constitutional muster: Signs deemed "offensive" by the Planning and Zoning Commission must now rise to the level of "obscenity" under state code. Also, business owners can swap out commercial signs on storefronts for noncommercial messages.

The settlement puts other towns on notice, according to Richard Morse, legal director for the local ACLU.

"If anybody else has an ordinance like Milton's, it's unconstitutional and needs to be changed," he said.

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In late 2016, Penny Nickerson, a retired history and civics teacher, staked four rainbow-colored signs next to her gingerbread-style house. They said: "Love Trumps Hate," "Stop the Hate," "Women's Rights = Human Rights" and "No Wall No Ban."

The 62-year-old grudgingly removed the placards in February at the request of a code enforcement officer, who labeled them political speech.

When Nickerson complained that her First Amendment rights had been violated, Milton Town Attorney Seth Thompson cited case law supporting a municipality's interest in "minimizing visual clutter."

Shortly after the ACLU filed suit, the town successfully moved to have the case heard in federal court. The two parties agreed that Nickerson could continue to display her signs without penalty in the interim.

Morse said Nickerson was within her legal rights to ask for monetary damages, but what she "cared about is the right of free speech."

The Union Street resident did not respond to phone calls Thursday. "I wish the town had just listened to me back in February," she said in a statement.

A visit to Nickerson's blue-shuttered home found a waving American flag and a smattering of new signs praising hurricane rescuers and opposing any repeal of the Affordable Care Act.

Contact Margie Fishman at (302) 324-2882, on Twitter @MargieTrende or mfishman@delawareonline.com.