Right to Speak Freely Suffers Setback

Mesa, AZ—Commercial free speech rights suffered a blow last week when the Maricopa County Superior Court refused to strike down Mesa’s arbitrary sign ordinance prohibiting Winchell’s Donut House franchisee Edward Salib from hanging advertisements for doughnuts and coffee in his shop windows.

“We will immediately appeal this decision,” declared Court Rich, pro bono lead counsel in the case and an attorney with the law firm of Jorden Bischoff McGuire Rose & Hiser PLC. “Ed Salib’s signs are an important form of commercial speech and his right to communicate with his customers must be protected by our state constitution and the First Amendment.”

In August 2002, a Mesa “code enforcement officer” forced Salib to remove every one of the signs advertising the monthly specials, such as frozen mocha cappuccinos, from his shop’s windows because the ordinance prevented businesses in the downtown redevelopment area from covering more than 30 percent of any windowsill or pane area. Immediately after Salib filed his lawsuit, the City of Mesa amended the ordinance changing the definition of windowsill or pane area as any group of windows not separated by six or more inches. However, even under the new ordinance Salib is not able to erect many of the professionally produced signs provided him under his franchise agreement.

“I am simply trying to communicate the monthly specials to my customers,” declared Ed Salib. “The bureaucrats working for Mesa have no idea how much this harms my business.”

Mesa justified the ordinance as necessary to promote safety and aesthetics. But the claim of public safety need has no foundation: Mesa businesses may completely cover their windows with blinds or shades, and businesses in Mesa are not required to even have windows. In addition, the ridiculous nature of the aesthetics claim could not be more clear; the ordinance does not regulate the size of signs because the restrictions hinge on window size, meaning that Salib’s neighbor could hang signs prohibited to Salib so long as he had larger windows.

“We intend to reinvigorate the protection of commercial speech under Arizona’s Constitution,” explained Tim Keller, a staff attorney at the Institute for Justice Arizona Chapter. “The free flow of commercial information is essential to the proper functioning of our free enterprise system.”