Palin Billboard Fight 'a Crusade' for First Amendment Rights

(Nov. 12) -- Alan Herson and his son, Jeffrey, have been fighting for years for the right to build billboards in Western states. Jeffrey Herson runs commercial billboard companies. His father, an attorney, files lawsuits on his behalf.

"It's a crusade," says the elder Herson, who won a landmark billboard case in Oregon in 2006. "We fight for truth, justice and the American way."

Their latest target is the city of San Carlos, Calif., a suburb of San Francisco where they hope to erect a billboard promoting Sarah Palin for president in 2012. The sign, which could also display commercial messages, would be visible to many thousands of motorists daily who pass through a busy stretch of Highway 101.



San Carlos, which hasn't allowed a new billboard in more than a decade, rejected his application.

The Hersons, arguing that the city had denied the younger Herson's right of free speech, immediately filed suit in federal court and won the first round. On Tuesday night, the San Carlos City Council countered by approving an emergency ordinance reaffirming a city ban on new billboards and removing restrictions on political signs that the court had found offensive.

Whether the city's new law will now allow San Carlos to block the Palin billboard remains to be seen.

"We are hoping it will result in the dismissal of the lawsuit," City Attorney Gregory Rubens said after the council vote. His office was preparing a motion Wednesday to have the suit thrown out.

But the elder Herson argues that the First Amendment right of free speech trumps the city's retroactive ordinance.

"You will see that sign up there someday," he predicted by telephone from his home in Jacksonville, Ore.

San Carlos, about 20 miles south of San Francisco, is in the largely Democratic county of San Mateo, where Republicans number barely one in five registered voters. Herson asserts that the city blocked the sign because of its left-leaning politics.

"The Bay Area is a liberal place, and liberals tend not to like free speech put up by other people," the lawyer declared. "I have a hunch if that sign said 'Support Nancy Pelosi,' it would be up by now. They hate Palin. They hate her more than anything."

Rubens, however, said the city is not against a sign that promotes Palin, the former Alaska governor and unsuccessful 2008 GOP vice presidential candidate. The city simply is opposed to any new billboard.

"The content of a sign is something that San Carlos has never regulated," the city attorney said. "We don't care what's on the sign."

He said using Palin's name was a "ploy" to draw attention to the case and provide a pretext for the lawsuit. "We don't know of any connection between him and Gov. Palin," Rubens said. "We think he used the cachet of her name to get all the publicity."

Nevertheless, the Hersons' suit brought to light a flaw in the city's original law, which restricted the size of political signs, prohibited their posting more than 60 days before an election and required their removal shortly after a vote.

The city maintained that the law was aimed at reducing the clutter of electoral lawn signs. But the Hersons said these provisions restricted speech and helped incumbent politicians, who typically are better known than their challengers.

U.S. District Judge Marilyn Hall Patel agreed with the Hersons and last month issued a temporary restraining order barring the city from enforcing size or temporal restrictions on political signs. She also ordered the city to review Jeffrey Herson's application.

In its emergency action Tuesday evening, the city council enacted a new sign ordinance that has no restrictions on political signs. But Alan Herson says changing the law after the fact will not get the city off the hook.

He plans to continue the legal fight and has a track record of persistence. He spent 12 years fighting Oregon's billboard law and ultimately persuaded the state Supreme Court to throw it out.

"We were successful with the Oregon billboard law," he said. "We are extending freedom throughout the West."

The suit against San Carlos seeks damages of $15,000 a month for each side of the billboard. The case is similar to one the Hersons filed against the city of Richmond on the opposite side of San Francisco Bay earlier this year. In fact, the suits are so alike that in one place, the Hersons' San Carlos filing says "Richmond" instead of "San Carlos," suggesting that the lawyer simply switched the city's names in the suit but missed one.

Richmond's city council also passed a new ordinance to remove its restrictions on political signs but Herson says he is continuing to press for damages in that case.

In San Carlos, the controversy began in September when Jeffrey Herson applied for a permit to put up a sign. He did not seek approval for a new billboard, which have been banned since 1991. Instead, he requested a permit for a "pole" sign, which is a sign connected to the premises of a business and is supposed to advertise the name of the establishment or the service it provides.

San Carlos restricts pole signs to a height of 25 feet, but he applied for a sign nearly twice that high -- the size of a standard billboard.

The younger Herson, who lives in Nevada, was not asked what he planned to display on his sign, but he volunteered that information twice in completing the brief permit application form.

One side of the billboard would say, "Palin for President 2012," according to a diagram he submitted. The other side would say "No on Measure C, November 4, 2012." Elsewhere in his application, he put the year for Measure C as 2009. Nov. 4 does not fall on a Tuesday, a normal election day, in either year.

Alan Herson said his son meant to write "Nov. 3, 2009," which was an election day, and that Measure C was a school measure in neighboring Santa Clara County. He said it makes no difference where the election was: The sign could have endorsed a candidate for mayor of New York and it still would have been legitimate political speech.

If the Hersons win their suit and get permission to put up their billboard, the lawyer promises to display another political message: "We will condemn the mayor and city council," he said. "They will drive by every day and see that sign up there."