Milton town code 'unconstitutional,' ACLU says after woman told to remove anti-Trump sign

Troubled by the recent presidential election, Penny Nickerson felt the need to express herself all over her front yard.

In late 2016, the retired history and civics teacher grabbed her markers. She staked four signs next to her white gingerbread-style house in Milton. They said: "Love Trumps Hate," "Stop the Hate," "Women's Rights = Human Rights" and "No Wall No Ban."

In February, a Milton code enforcement officer ordered Nickerson to remove all the placards. According to town code, Nickerson's opinions in every color of the rainbow qualified as "political speech." And political speech (in sign form) was only permitted during election season. 

The 62-year-old insisted that her free speech rights had been violated. The American Civil Liberties Union of Delaware agreed.

This week, the local ACLU sued the town on behalf of Nickerson, claiming that its code violates the First Amendment. The complaint, filed Monday in Chancery Court, asks the court to declare the code unconstitutional and seeks an injunction preventing town officials from interfering with Nickerson's right to display signs, along with unspecified damages.

"Milton cannot restrict the message on a sign because someone made an arbitrary decision that the message is 'political,'" Kathleen MacRae, executive director of the ACLU of Delaware, said.

Nickerson has the same right to post a sign declaring "Love Trumps Hate" as she does a "For Sale" sign, she added. "This is the first time we've heard of such a thing in Delaware."

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Milton Town Attorney Seth Thompson declined to comment Tuesday.

Nickerson, the daughter of a World War II veteran, said she enlisted the ACLU after town representatives refused to meet with her. She's not sure if a neighbor's complaint triggered the zoning warning, but she has bigger fish to fry.

"It's not really about me anymore," she said. "I think of the millions of people who have sacrificed so much so that we would have these rights. I would be dishonoring them."

After moving to her Union Street home from Long Island, New York, three years ago, Nickerson said the election of President Donald Trump drove her to plaster her opinions on her busy residential street.   

She removed all four signs in February at the request of Michael Trotta, a Milton code enforcement officer. But when Nickerson asked to meet with town officials to discuss the matter, she was denied.

Instead, she received two letters from attorney Thompson stating that her signs were not protected by the First Amendment.

In one, Thompson wrote that case law has established that "a municipality has a valid interest in minimizing visual clutter." Sign regulations are necessary, Thompson continued, because signs "take up space, may obstruct views, distract motorists, displace alternative uses for land and pose other problems that legitimately call for regulation."

The attorney noted that the Town Council amended its sign code last year to expand the definition of a "political sign." No longer were they narrowly construed as "intended to advance a political statement, cause or candidate for office."

Signs deemed political, according to the current code, can't be posted more than three months before a contested election or referendum. And they must be removed within two weeks of vote-casting. 

Further, Milton residents are limited to "one sign per lot for each office in the contested election or per issue on the referendum." Because the ordinance allows political messaging during defined periods, it doesn't suppress free speech, Thompson argued. If Nickerson failed to comply, she could be fined, he added. 

The ACLU countered in its complaint that "content-based regulation of speech" is subject to strict scrutiny, according to previous court rulings. Currently, the Milton code permits many types of messages to be displayed on private property year-round, the lawsuit said, including real estate signs, church announcements and memorials, provided that they meet size and location requirements.

"A town can regulate the dimensions of a sign and the setback," MacCrae said, "but they can't regulate the content of the message."

The ACLU is so committed to free speech protections, she added, that the nonprofit would defend a person who posted racist or homophobic signs.

Today, Nickerson's offending signs are stacked in her living room. The colors are fading, anyway, she said.

But she paraded out their replacements on Monday, the same day her lawsuit was filed. This time, she ordered the signs on Vistaprint.

One says "Words matter."

Another quotes Trump saying, "I don't stand by anything," in response to his allegations that former President Barack Obama had Trump Tower wiretapped.

A third asks, "Who pays for the tax cut for the 1 0/0? The 99 0/0????"

And, finally, there's a quote from French philosopher Voltaire:

"I disapprove of what you say, but I will defend to the death your right to say it."

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