Residents Sign Petition to Permit Hostage Flyers to be Posted in the Public Right of Way

(Updated November 15, 2023) The conflict in Israel has sparked a new controversy here in Scarsdale about the posting of flyers in the Village right of way.

In response to displays of posters featuring the Israeli hostages who were kidnapped by Hamas, the Village of Scarsdale issued a press release on November 6, 2023 barring these signs from public property.

The press release from the Village Manager’s office says:

Reminder: Signs in the Public Right-of-Way Prohibited

As a reminder, all signs, except for traffic control, government signs and a limited number of specially permitted signs are prohibited in the public right of way, which includes poles, posts or structures on or adjacent to sidewalks, streets, or roadways per Chapter 247 of Scarsdale Village Code.

In 2021, the United States Court of Appeals for the Second Circuit agreed with the Southern District Court’s review of Scarsdale’s sign laws that included the warning, “[a]ny enforcement that considers the type of sign or the viewpoint expressed would violate the First Amendment.” Therefore, the Village of Scarsdale has no choice but to continue to remove all signs, regardless of content or viewpoint, placed within the public right of way.

If you have placed or authorized a non-exempt sign of any type to be placed in the public right- of-way, please relocate it to be wholly on your private property, where it must comply with any other applicable local laws. If you are unsure of where your property line is, as it may often be 13 feet or more from the curb, be sure to consult your land survey.

However some residents believe the code barring the signage should be changed. Joshua Mitts, a Sprague Road resident and a professor of law at Columbia Law School argues that “The crisis of antisemitic hate crimes against Jewish people is certainly a threat to public safety. Because the Board can even change the Code if necessary, tearing down these signs is ultimately a political decision—and a deeply misguided one at that.” He said, “I did not post the original signs that were torn down. But I am a law professor at Columbia and I found the Village's explanation -- which claimed that it was legally obligated to remove these signs -- to be unconvincing. I spoke with other lawyers who similarly thought it was unpersuasive."

He has circulated a petition asking for the Board to permit the signage and it has garnered over 400 signatures.

Here is what the petition says:

Dear Mayor and Trustees:

Instead of tearing down images of Israelis and Americans taken hostage by Hamas, the Board of Trustees should immediately authorize these signs until the hostages are released. Section 247-3(B) of the Village Code permits the Board of Trustees to authorize signs necessary for public safety and convenience. The crisis of antisemitic hate crimes against Jewish people is certainly a threat to public safety. Because the Board can even change the Code if necessary, tearing down these signs is ultimately a political decision—and a deeply misguided one at that.

This is not the first time the law has been challenged. In December 2021, there was a ruling by the U.S. Court of Appeals for the Second Circuit. In a case brought against the Village by Robert Berg the court ruled in favor of the Village. The original case involved the post of signs for public office in the public right of way. Read about it here:

Response from the Village Board

At the Village Board meeting on Tuesday November 14, 2023, the Scarsdale Board of Trustees announced a response to the petition, explaining why permitting the posting of these flyers is unconstitutional. The memo explains, "Our law does not permit this Board to make exceptions that would allow for signs on public property based on the content of the sign. The Supreme Court has been consistent and clear on this point: “Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the speech.” 

Trustee Jeremy Gans read the statement which says that "any law that we adopt along those lines would have to allow for the display of all signs, regardless of content on public property."

Though the Board condemns the attack by Hamas and anti-Semitism, they contend that permitting the posters of the hostages while barring the posting of other messaging is against the law. See their statement here:

Over the weekend, the Village Board received an open letter asking the Village to create an exception to our sign law to authorize the display of signs with the pictures of hostages to be displayed on public property. The letter claims that because “the Village Code permits the Board of Trustees to authorize signs necessary for public safety and convenience,” we can allow these signs under the guise of public safety. The letter goes on to say that “tearing down these signs is ultimately a political decision—and a deeply misguided one at that.”
This letter is wrong on the facts, wrong on the law and makes accusations against this Board that deserve a response.

The Village of Scarsdale has a “content neutral” sign law. That means, we prohibit all signs on public property, with very limited exceptions, mostly related to traffic safety. The Supreme Court has recognized that municipalities like Scarsdale have a compelling government interest in traffic safety, and has said that allowing those signs, while prohibiting all others, is permissible under the First Amendment. But for good reason, our law does not permit this Board to make exceptions that would allow for signs on public property based on the content of the sign. The Supreme Court has been consistent and clear on this point: “Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the speech.” Ward v. Rock Against Racism, 491 U.S. 781 (1989).

The petition being circulated is directly asking this Board to authorize the display of certain signs specifically because of the content on those signs. That request is facially unconstitutional based on numerous Supreme Court decisions and the First Amendment.

When I was sworn in as a Trustee, I took an oath that required me to support and uphold the Constitution of the United States. The open letter that has been circulated to the community is asking the Trustees to knowingly violate the Constitution and therefore our oath of office. I simply cannot do that, despite my personal concern about the rising tide of anti-semitism in the country and my support of the underlying message of the posters, which is the return of the hostages taken by Hamas on October 7th.

The rise of anti-Semitism is serious. The attack by Hamas on October 7th was horrific and tragic. This open letter is, however, not serious. It asks the Board to make a mockery of our law and of the Constitution and implies that our refusal to do so is harming the Jewish community.

If the community wants to have a serious discussion about revising our existing law to allow signs on public property, that is a conversation that we can have as a Village. However, any law that we adopt along those lines would have to allow for the display of all signs, regardless of content on public property. That includes the obligation to allow advertising signs, political signs and signs that may run counter to the views of the overwhelming majority of our residents. To date, our residents have strongly opposed this type of law.
Over the past month, the Village has made numerous public statements supporting the Jewish people, condemning anti-Semitism and expressing our outrage over the attack by Hamas. Two days ago Village unveiled the moving installation in Chase Park, honoring the hostages that were taken by Hamas. No one should have any doubt about what this Village and this Board stand for and where our loyalties lie. But we have a fundamental obligation to uphold Village Code, the laws of the State of NY and the Constitution of the United States and the request contained in the letter asks us to violate that obligation. That is something we simply cannot do.

Responding to the Village Board, Joshua Mitts said, "The petition calls on the Village to speak up, not to censor. The Village is mischaracterizing our request as impermissible viewpoint discrimination rather than constitutionally permitted government speech. The First Amendment does not bar government officials from expressing a viewpoint. “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009). Just like the art installation in Chase Park is constitutional, so also it is constitutional for the Village to display hostage signs in public areas. The Supreme Court has held that the Village may receive “assistance from private sources for the purpose of delivering a government-controlled message” and is entitled to be “selectively receptive” to private donations when expressing its views. For these reasons, the Village is constitutionally permitted to display hostage signs in public spaces that it controls, as an expression of its viewpoint concerning antisemitism and the threat to the Jewish people posed by the hostage crisis."