PORTSMOUTH — A federal judge has approved the settlement of a lawsuit filed in January by The American Civil Liberties Union (ACLU) of Rhode Island that challenged the constitutionality of a Portsmouth town ordinance banning the posting of “political” signs on residential property. 

Both the ACLU and the defendant in the case, the Town of Portsmouth, say the settlement was favorable to their side.

The settlement, which the ACLU says permanently bars enforcement of the ordinance, was on behalf of town resident Michael DiPaola, who had erected a series of signs on his property that criticized what he believed was the town’s selective enforcement of its zoning code.

Under the consent judgment approved by U.S. District Judge William Smith, the town is permanently restrained from “enforcing and/or threatening to enforce” provisions of the town’s sign ordinance as it relates to (1) any posting of signs by Mr. DiPaola on any property he owns in Portsmouth and; (2) “any non-commercial speech signs posted in the town.” The judgment also awards $17,500 in attorneys’ fees and costs.

Mr. Di Paola has had a running feud with town building officials over zoning issues, and the suit claimed he “posted the first sign after five years of frustration and perceived harassment” from those officials, “both in excessively enforcing codes against him and refusing to enforce building codes against others.” 

Over the course of a few days in January, he erected additional signs, and he was then issued a notice of violation of the town’s zoning ordinance. According to the ACLU, the notice alleged that Mr. DiPaola failed to obtain a permit required to display the signs, that political signs were not a category of sign allowed to be displayed in residential areas, and that the display also violated a provision banning signs that “interfere with, mislead or confuse traffic.” 

He was given seven days to remove the signs or else face $500 a day fines for each sign left standing.

The town, however, maintained the signs were ordered taken down not due to their political content, but because they were in “blatant violation” of the sign ordinance.

“The signs that he posted are not ‘political’ signs. In no way was the notice of violation based on the content of the signs,” said the town in a statement in January.

The lawsuit argued that the zoning ordinance violated Mr. DiPaola’s free speech rights under the First Amendment by, among other things, “permitting only signs with specified content to be erected; exempting certain permitted signs from the requirement of obtaining a permit; and prohibiting all other speech, including political speech.” 

Thus, the suit claimed, the ordinance had the unconstitutional effect of regulating political speech more harshly than other types of speech. The suit also challenged the ordinance’s failure to “provide any guidelines or criteria which must be followed and applied by a building inspector in making a determination as to whether or not to grant a sign permit.” 

Shortly after the suit was filed, the town agreed to withdraw the notice of violation while the case proceeded.

“I am really pleased that my right to speak my mind has been vindicated,” Mr. DiPaola said in a prepared statement. “As I’ve said all along, I just want to be treated fairly, the same as anybody else, and I’m happy that I can continue to express my views on my property to make other people aware of the disputes I have had with town officials.”

ACLU of Rhode Island cooperating attorney Richard A. Sinapi added in a statement, “This consent judgment is an important victory for freedom of speech. Courts have regularly held that political signs on residential property are a form of unique expression entitled to the highest degree of protection under the First Amendment. This consent judgment vindicates that key principle and ensures that people like Mr. DiPaola can use their property to express their views without having to seek the government’s permission.”

Town’s response

The ACLU is claiming victory, but in an e-mail Tuesday, Town Solicitor Kevin Gavin said the settlement was favorable to the town.

“The Town of Portsmouth and its insurer have agreed to settle the first amendment lawsuit filed in January by the American Civil Liberties Union of Rhode Island on behalf of Michael DiPaola, concerning the Portsmouth sign ordinance,” a prepared statement from the town reads. 

“While the town has not interpreted or enforced its sign ordinance to ban political and other noncommercial signs by residents, the town recognizes that the language of the ordinance — like most sign ordinances throughout the state and the entire country — needs updating in light of the U.S. Supreme Court’s 2015 opinion in Reed v. Town of Gilbert, Arizona. 

“Under the settlement, the town agrees it will not enforce the sign ordinance, in its current form, as it relates to noncommercial signs. This is consistent with the town’s longstanding policy and practice. The law firm representing the plaintiff will be paid — by the town’s insurer — for attorneys’ fees and costs incurred in bringing the federal court lawsuit. 

“The fees will be shared with the American Civil Liberties Union Foundation of Rhode Island. The Town of Portsmouth will pay nothing to Mr. DiPaola or his ACLU attorneys. There is no court finding or admission by the town of any violation of Mr. DiPaola’s constitutional rights, and no monetary damages will be paid to Mr. DiPaola.”