No For Sale Signs Allowed II

In a recent post I marveled that a particular Chicago suburb has no for sale signs, even though we are in the midst of the worst housing market in recent history.  The suburb has an ordinance banning for sale signs (you can read its text in the earlier post) and I wondered why the ban continued to have force even though the Supreme Court ruled that such ordinances were unconstitutional in the 1977 case Linmark Associates v. Willingboro.  Here’s what I speculated: 

Most residents assume that ordinances in the local statutory code are good law; that is, they perceive themselves as being legally prohibited from using a For Sale sign.  Those residents who are familiar with First Amendment law are nonetheless deterred from using a sign because (1) there is a residual risk that the Village will try to enforce the ordinance; and (2) there is reason to worry about sending a market signal of “desperation” if you are the sole seller using a sign.  As for real estate agents, most know that the ordinance is unconstitutional but they have incentives to comply with it nonetheless. The perceived inability to put a For Sale sign in one’s yard makes it extraordinarily difficult to sell by owner . . . . Furthermore, as repeat players in the Village, real estate agents may be reluctant to do anything that the Village will view with displeasure. 

I’ve spent the last month researching whether this hypothesis is correct.  In this post, I want to focus on the effect of the ordinance remaining on the books and on the actions of the Village, both with respect to its own citizens and with real agents.  The bottom line is that if a municipality carries on as though it is acting constitutionally, a lot of people will believe that it is. 

To begin, one cannot overstate how easily a person with no knowledge of First Amendment law could conclude that they did not have the right to erect a sign.  One day I played the role of someone trying to figure out whether they could use a sign.  I walked into a local real estate agency and asked whether signs were permitted; I asked the same question at the local library.  The person behind the desk at the agency told me that there has been a ban on for sale signs for nearly 40 years and that if I had questions I should call the Village; the research librarian said that there was an ordinance prohibiting such signs and then showed me its text.  He was unfamiliar with any concerns about the constitutionality of the ordinance.  I don’t think either of these individuals were trying to mislead me.  Rather, they were sharing their impression of what the law is.

Only a Google search of the name of the Village and “for sale sign” suggested that the ordinance might be unenforceable.  Amidst lots of garbage were a few opinion pieces from the local paper; a couple of which stated that the ordinance should be repealed because it was unconstitutional; a couple of which defended the ordinance on the ground that it promoted integration.  The pieces also reflected some confusion about whether the Village actually had an ordinance or whether it only had an agreement with local realtors.  It has both, but one opinion piece was followed by this editor’s note:  “Contrary to conventional wisdom, there is no formal For Sale sign ban in the village. It’s a longstanding, voluntary agreement among local Realtors at the request of the village.”

 Next I called the Village.  When I asked whether I could put up a for sale sign, the person who answered the phone replied by referring to the ordinance.  When I pressed on and said that I had read something in the local paper about the ban being unconstitutional, he said that the ordinance was not enforced because “certain courts in other jurisdictions” have raised concerns that such bans interfere with free speech.  He then referred to the agreement with the realtors and said the Village asks people to comply with the ordinance.  He also spoke about how the Village has managed to avoid the white flight that occurred in neighboring communities.  Had I not asked about enforcement, however, I would have come away from the call thinking that I could not put up a sign.

Later I met with an employee at the Village’s Community Relations Department, which enforces fair housing policy.  (The employee knew I was a law professor studying the ordinance.)  When I asked whether the Village had a ban on for sale signs, she replied that it has an ordinance and a voluntary agreement with the local realtor’s association.   If a homeowner puts up a for sale sign, the Village calls and asks that the sign be taken down.  The employee said that homeowners almost always comply with the request.  This compliance is unsurprising, since the Village cites the ordinance when making its request.  (She was not entirely specific about what the Village would do if a homeowner refused to take down the sign.   She said that if pressed by the homeowner, the Village might say that the ordinance was “questionable.”  Ultimately, however, the question of enforcement was up to the Village’s legal department.  As of this writing, the legal department has not returned my phone calls.)

This conversation underscored the symbiotic relationship between the local realtor’s association and the Village.  The Community Relations employee stressed the importance of the association, noting that the association was even “sterner” than the Village about the ban and emphasizes that if its members use a sign, the association will ask that it be removed.  Later I learned that representatives of the Community Relations Department attend a biannual orientation for new real agents to speak about fair housing policies.  They inform new agents about the existence of the ordinance.  According to one well-positioned member of the local realtor’s association, no-one ever raises a question about the ordinance’s constitutionality.

These orientations help explain something about real agent agents that runs counter to my initial hypothesis.  I had assumed that most local real agents know about the violation of the First Amendment but have professional and financial incentives to remain silent.  In fact, many of the real agents I’ve spoken with do not know about the apparent unconstitutionality of the ordinance.  Given the content of the orientation, this lack of knowledge is predictable.  The Village lectures that signs are forbidden and nobody from the local realtor’s association suggests at the orientation that the truth is otherwise. 

This is not to suggest that all members of the local realtor’s association believe the ordinance is valid.  Some are obviously well-aware of its problems under Linmark.  But counter to my original hypothesis, I’ve come to believe that their incentives are not entirely financial.  More on the role of real estate agents in my next post on this topic.

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5 Responses

  1. Kevin C. Walsh says:

    This discussion of the effects of having an unconstitutional ordinance remain “on the books” is fascinating. It reminded me of this recent Second Circuit decision linked to by Howard Bashman yesterday. The decision grants qualified immunity to a police officer for arresting an individual who violated an anti-loitering statute that had been held unconstitutional several years earlier. I wonder whether this phenomenon is based in part, implicitly, on a confusion about judicial review — an erroneous assumption that the effect of a holding of unconstitutionality is to take the statute “off the books.” Courts sometimes use language suggestive of such an effect in severability decisions. Consider, for instance, Booker, in which the Court purported to “sever and excise” certain statutory provisions. The excision imagery is just a figure of speech, but it is misleading.

  2. Jack Preis says:

    There are so many interesting issues lurking in here. But the one that jumps out at me is the con law debate that pits judicial supremacy against departmentalism. The Village could defend itself, with Abraham Lincoln on its side, by arguing that Supreme Court opinions only bind the parties to the case and do not bind other actors. So Linmark Associates v. Willingboro only binds Willingboro, not the Village in this Chicago suburb. So, under departmentalism, the Village has done nothing wrong. Aaron v. Copper, of course, points the other direction. Fascinating stuff.

  3. Jim Maloney says:

    Enforcing unconstitutional statutes seems to be all the rage these days, and the Second Circuit held, just the other day in this case, that a police officer enforcing a statute that had been declared unconstitutional 18 years ago, but still remains “on the books,” has qualified immunity! So, yes, you can freely “violate” an unconstitutional law without fear of ultimate conviction, but you nonetheless ought to fear prosecution: you will still quite possibly be arrested and likely incur legal defense costs, and, after you’ve invested time, effort in money in seeking redress, you may not prevail in a subsequent 1983 action. So unconstitutional statutes have quite a strong deterrent effect, after all. I think we need a new doctrine here…

  4. Dave says:

    Maybe if someone explained damages and attorney’s fees under section 1983 to the kind folk of this suburb there would suddenly be a lot more interest in the constitutionality of bans on for sale signs.

  5. TalkingHead says:

    Don’t the real estate agents (at least those who are aware of Linmark Associates) owe their selling and buying clients some sort of fiduciary duty? This seems like self-dealing. Real estate are at risk of being disintermediated as sophisticated buyers and sellers are able to contract successfully for the purchase of homes, especially with the availability of “for sale” data on the Internet – and where permitted – “for sale” signs in front yards. Real estate agents add significant cost to their transactions, about 6% of the purchase price in my market, or 3% for seller’s agent, and 3% for buyer’s agent. In the absence of yard signs and adequate market data online, sellers and buyers alike are put in the position of relying on the middlemen.