Free speech lawsuit against Milton moves to federal court
A lawsuit filed earlier this month arguing the Town of Milton violated a resident’s free speech is moving to federal court.
The suit, filed by Milton resident Penny Nickerson, states a town ordinance regarding political signs is unconstitutional. Nickerson, represented by the American Civil Liberties Union of Delaware, said her First Amendment rights were violated when a code enforcement officer told her to remove several signs from her front yard that read “Love Trumps Hate,” “Women's Rights = Human Rights” and “No Wall No Ban.”
On Friday, May 19, Attorney Scott Wilcox of Whiteford, Taylor and Preston LLP in Wilmington filed to remove the case from the Delaware Court of Chancery to the U.S. District Court for the District of Delaware.
The notice of removal states Nickerson's suit, which seeks damages for “alleged violations of her constitutional rights,” should fall under federal jurisdiction.
The case now appears on the federal court docket; no judge has been assigned.
Wilcox and Milton Town Solicitor Seth Thompson declined to comment on the case.
“We don't understand the motivation behind the Town of Milton's change of venue,” said Kathleen MacRae, ACLU of Delaware executive director. “We're happy to argue in front of whichever judge is chosen to hear the case.”
Town officials issued a press release about the notice to remove the case to federal court May 24, stating the town will not comment on the case on an ongoing basis and “looks forward to the matter’s resolution.”
“The town is committed to compliance with the State Constitution and the First Amendment of the United States Constitution,” the release reads. “The Milton Town Code and its enforcement do not discriminate based on any person’s political views.”
The lawsuit, filed in Chancery Court May 16, states Nickerson posted the signs in her Union Street yard after the presidential election. In February, a code enforcement officer told her to take down the signs, based on the town's sign ordinance which states political signs only may be posted 90 days before and 14 days after an election or referendum.
Nickerson complied, but also requested a meeting with town officials so she could explain why removing the signs violated her First Amendment right to free speech. That request was denied, the suit states.
In a press release, the ACLU said Nickerson then received two letters from Thompson explaining the ordinance and stating that she would be fined if she reposted them.
That's when Nickerson turned to the ACLU for legal help. Since the lawsuit was first filed in Chancery Court, Nickerson has posted new signs in her front yard that read “Words Matter,” “Who pays for the tax cut for the 1%? The 99%?,” “I don’t stand by anything - Donald Trump,” and a quote from French philosopher Voltaire, “I disapprove of what you say, but I will defend to the death your right to say it.”
The suit aims to rule Milton's sign ordinance unconstitutional, and seeks compensatory damages and attorney fees.
Nickerson could not be reached for comment.
