Most people would be outraged to discover that their government engages in blatant censorship because it thinks, like Jack Nicholson in A Few Good Men, that we “can’t handle the truth.”
This, however, is exactly what Glendale, Ohio does. In July 2003, Glendale threatened Chris Pagan with a hefty fine and even jail time because he put a “for sale” sign in the window of his car. Glendale bans the words “for sale” from parked cars because it thinks people will walk into traffic to look at them and get run over.
The sheer silliness of Glendale’s policy is what makes this case so important. If Glendale is allowed to get away with censoring “for sale” signs for our own good, then pretty soon the government will be censoring all kinds of harmless ordinary speech. And once the government gets in the habit of censoring everyday speech, it will start censoring more important ideas.
Chris understood that what Glendale was doing to him was more important than just his “for sale” sign, so he fought back by filing a First Amendment challenge in federal court. But, amazingly, he lost. Even more amazing, a three-judge panel of the 6th U.S. Circuit Court of Appeals upheld that decision.[c]Pagan v. Fruchey, 453 F.3d 784 (6th Cir. 2006). Judge Tarnow of the Eastern District of Michigan, sitting by designation, dissented.[/c]
These courts ruled that Glendale can censor a “for sale” sign on a whim because the U.S. Supreme Court singles out what it calls “commercial speech” for only limited First Amendment protection.
On June 2, 2006, the Institute for Justice took up Chris Pagan’s cause and asked all 14 judges of the 6th Circuit to reconsider the decision of the three-judge panel. On September 6, 2006, the entire 6th Circuit agreed to rehear the case and withdrew the earlier appellate decision. On October 6, 2006, the Institute for Justice submitted a new brief on Chris Pagan’s behalf and will argue the case before the full court later this term.
“For Sale” Is Free Speech
Chris Pagan lives in Glendale, Ohio and practices law in nearby Middleton. In late spring 2003, he accepted a 1970 Mercury Cougar from a client in lieu of fees. Chris did not have much use for the car, so he put it up for sale in the paper and on the Internet.
His classified ads only drew a couple of calls, however, so Chris did what people have done since the advent of the automobile: he put a small “for sale” sign in the window and parked it on the street in front of his house.[c]He did not park his car in his driveway because it is behind his house and backs onto an alley.[/c] This turned out to be a great idea because his phone began ringing off the hook.
But this small act of commerce also made Chris a criminal. Under Glendale ordinances, Chris committed a crime when he put a sign with the words “for sale” in the window of his car.[c]Glendale Traffic Code § 76.06(A) provides, among other things, that a person cannot park a car on a public street for the purpose of advertising it for sale.[/c] Because Chris received a parking ticket in the year before he put up his sign, he could have been fined $250 and sentenced to 30 days in jail.[c]Glendale Traffic Code § 70.99(B)(1)(b).[/c] (Those with no violations face up to a $100 fine.)
With dangerous free speech on the loose, it only took a few days for the Glendale police to swing into action. On July 21, 2003, an officer told Chris’ wife that the sign was illegal. Chris emailed the City the same day asking to see the ordinance and pointing out that in 2000 a federal court in California ruled that Los Angeles violated the First Amendment when it forbade “for sale” signs from cars parked on its streets.[c]Burkow v. City of Los Angeles, 119 F. Supp.2d 1076 (C.D. Cal. 2000).[/c]
Police Chief Matt Fruchey provided Chris with a copy of the ordinance. Chris asked for permission to leave the sign in his car window for a few more weeks, which is all he thought it would take to sell the car. The Chief refused, and set a 5 p.m. deadline on July 24 to remove the sign or face criminal charges.[c]The Institute for Justice has the correspondence between Chris and the City on file.[/c] Not wanting to wind up in the slammer, Chris took down his sign.
But he also decided to take a stand. A week later, Chris filed a First Amendment suit in federal court because he understands what Glendale does not: he has a constitutional right to tell people that his car is for sale.
Glendale argued to the district court that it censors “for sale” signs in parked cars because careless, irresponsible people might get run over while looking at them. Glendale, in other words, wants to keep people in the dark for their own good. Worse yet, Glendale did not even offer any evidence that “for sale” signs actually cause people to get run over. The City’s only evidence was an affidavit from Chief Fruchey stating the purpose of the ordinance.
This sort of paternalistic censorship should have made for an easy case because the First Amendment plainly says that government “shall make no law…abridging the freedom of speech.” It does not say that government can ban speech whenever it believes people are too irresponsible to be trusted with the truth.
Nevertheless, the district court sided with Glendale, ruling that, because Chris’ “for sale” sign is “commercial speech,” the City can censor it more or less at its discretion, even if the City does not have any evidence that the speech is genuinely dangerous.
A divided three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed.[c]Pagan v. Fruchey, 453 F.3d 784 (6th Cir. 2006). Judge Tarnow of the Eastern District of Michigan, sitting by designation, dissented.[/c] This decision marked a sudden downturn in the First Amendment rights of the 32 million Americans who live in the four states—Michigan, Ohio, Kentucky and Tennessee—that make up the 6th Circuit. In a nutshell, the Court of Appeals gave government broad power to censor so-called “commercial” speech to protect people from themselves.
Commercial Speech: A Second-Class Citizen
The core principle of the First Amendment is that government cannot suppress a message just because the government does not like it.[c]See, e.g., Rosenberger v. Rectors and Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”); Cohen v. California, 403 U.S. 15 (1971) (reversing a criminal conviction for wearing a jacket with an expletive condemning the Vietnam draft).[/c] This principle is so profound and so ingrained in our traditions that it transcends simply being a constitutional right. [c]Under legal traditions stretching back centuries, government can prohibit certain forms of carefully defined expression that are inherently harmful such as libel, threats, obscenity or direct incitement to immediate violence. Government has also always been allowed to ban speech that proposes a criminal act such as fraud or conspiracy. Finally, when the government can demonstrate a truly compelling state interest, it can ban speech like the disclosure of military secrets as long as the ban is no more extensive than necessary to serve the compelling interest. Needless to say, the idea “this car is for sale” does not fall within any of these narrow exceptions.[/c] It is synonymous with what it means to be American.
There is, however, a gaping exception to this core principle: commercial speech. The U.S. Supreme Court only affords limited First Amendment protection to speech, like Pagan’s “for sale” sign, that proposes an economic transaction.[c]Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980).[/c] Singling out commercial speech for second-class status was a peculiar choice because, as former Supreme Court Justice Harry Blackmun aptly observed, our concern with “the free flow of commercial speech may often be far keener than [our] concern for urgent political dialogue.”[c]Bates v. State Bar of Ariz., 433 U.S. 350, 364 (1977).[/c]
The Supreme Court justifies the second-class status of commercial speech in several ways. In some cases, it says that government is entitled to regulate commercial speech because government at all levels pervasively regulates the economy.[c]E.g., Central Hudson, 447 U.S. at 562; Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978).[/c] In other cases, speech bans are approved when they aim to protect consumers.[c]E.g., Va. Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976).[/c] Finally, the Supreme Court gives government the power to regulate the means of commercial speech, such as billboards, to minimize secondary effects like driver distractions.[c]E.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).[/c]
The Supreme Court has never explained, however, why it believes that government censors become especially enlightened and trustworthy, and citizens especially gullible, just because a sign reads “For Sale” instead of “Go Buckeyes” or “Vote Smith.”
The simple fact is that the so-called “commercial speech doctrine” allows governments to do exactly what the First Amendment says they are not supposed to do: censor speech on the basis of its content.[c]The government has the power to reasonably regulate the method or means of speech to make sure that free expression does not intrude on the rights of others. As such, the government can, for example, place limits on how loud a rock concert can be. Ward v. Rock Against Racism, 491 U.S. 781 (1989). The government absolutely cannot, however, regulate the method of speech simply because it disagrees with the content, and the content-neutral regulations the government does impose cannot effectively silence the speaker.[/c]
Ignorance Is Not Bliss
Because the U.S. Supreme Court’s commercial speech cases let the government censor ideas based on their content, it should come as no surprise that the censorship and manipulation of commercial speech is pervasive.[c]John Fee, Speech Discrimination, 85 B.U. L.Rev. 1103, 1146-47 (2005) (“The category of commercial speech alone accounts for huge fields of content-based government activity.”).[/c]
No less surprising is that the government often censors commercial speech for paternalistic reasons that have nothing to do with consumer protection. As in Pagan’s case, for example, the stated motive behind Glendale’s censorship is a belief that its citizens need the government to protect them so they do not walk into traffic. In banning the words “for sale” from car windows, Glendale is treating its citizens as though they are “no more discriminating than the audience for children’s television.”[c]Peel v. Attorney Registration and Disciplinary Comm’n of Ill., 496 U.S. 91, 105 (1990) (striking down a commercial speech restriction because it assumed consumers were no more responsible than children).[/c]
Because it continually carves out exceptions to the once-clear protection of free speech articulated in the First Amendment, each term, it seems, the U.S. Supreme Court takes on yet another commercial speech case in which the government still seeks to abuse the limited power to regulate speech based on the contents of its words. Because the High Court has created such an amorphous and confusing standard, it is inevitable that the government will continue to abuse this power. These cases, like Chris Pagan’s, continue to arise even though almost 30 years ago, the U.S. Supreme Court “rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information.”[c]Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, 425 U.S. 748, 769-70 (1976).[/c]
Make Free Speech Truly Free
The problem with the commercial speech doctrine is not only its encouragement of government to engage in condescending paternalism in the speech context, but also its presumption that speakers and listeners cannot be trusted to be left alone. It is hard to imagine that this basic lack of faith in the principles of free speech does not affect other aspects of First Amendment law. That is what makes the underlying principle of Chris’ case so important. In defending his right to put a “for sale” sign in his car window, Chris is defending everyone’s right to express and hear ideas without fear of censorship and criminal prosecution.
A commonsense reform of our free speech jurisprudence would abolish the commercial speech exception and establish the simple principle that government cannot censor speech unless it is inherently illegal.[c]Again, this would mean speech that constitutes criminal conspiracy, fraud, libel, or the disclosure of, for example, military secrets.[/c] The only role for government in the expression of ideas—commercial or otherwise—would be to regulate the reasonable time, place and manner of speech. This would best fulfill the promise of the First Amendment.
How Liberty Disappears
In the Road to Serfdom, his landmark study of democracy and challenge to socialism, Nobel prize-winning economist Friedrich Hayek explained that the gravest danger to freedom in the West was not that an outsider would take it, but that we would give it up, one right at a time.[c]University of Chicago Press (1944).[/c] Hayek warned that each right we voluntarily set aside is a milestone on the road to tyranny. And what makes traveling this road so dangerous is that each step of the journey seems to make so much sense to so many people that no one recognizes the grim nature of the destination.
In Chris’ case, the District Court and the Court of Appeals considered it “self-evident”[c]Pagan v. Fruchey, 453 F.3d 784, 789 (6th Cir. 2006).[/c] that Glendale has the authority to censor certain truthful words. Neither court even remarked on the peculiarity of Glendale threatening to jail Chris for 30 days simply because a sign in his car said “for sale” instead of, for example, “Support Our Troops.”
It is chilling that it took ordinary citizen Chris Pagan—rather than the Glendale legislators who wrote the ordinance, or the police enforcing it, or the Glendale attorney, or the judges on the District Court and Court of Appeals—to consider it wrong for Glendale to censor a sign because of what was written on it. Everyone took it for granted that, as long as speech is commercial, government can ban it on what amounts to a whim without any evidence it is harmful.
Unless the decision of the Court of Appeals is reversed, the First Amendment will be diminished in precisely the way Justice Anthony Kennedy foresaw more than a decade ago: “[T]he protection afforded commercial speech [will] be reduced almost to nothing; comprehensive bans on certain categories of commercial speech [will] be permitted as a matter of course.”[c]Edenfield v. Fane, 507 U.S. 761, 777 (1993).[/c]
Not only will this obviously redound to the detriment of commercial speech, it undermines the First Amendment across all its frontiers. And this weakened First Amendment will make it that much easier for governments to persuade courts that the next round of censorship, perhaps this time involving political or religious speech, is really no worse than the one that preceded it.
The Road to Reversal
Even though the U.S. Supreme Court affords commercial speech less protection than its non-commercial counterparts, it has never gone nearly so far as the District Court and Court of Appeals did in Chris’ case. In a series of cases in the 1990s interpreting the Central Hudson case (in which the U.S. Supreme Court ruled in 1980 that the New York Public Service Commission violated the First and Fourteenth Amendments when it tried to completely ban an electric utility from advertising to promote the use of electricity), the Supreme Court made two things clear: (1) the burden is on government to justify a commercial speech ban with concrete evidence that the speech poses a concrete harm; and (2) courts should be extremely skeptical of commercial speech bans that aim simply to protect people from themselves.
In Edenfield v. Fane, for example, the U.S. Supreme Court overturned a Florida law prohibiting CPAs from soliciting new clients.[c]507 U.S. 761 (1993).[/c] In a striking similarity to Chris’ case, the Florida Board of Accountancy tried to justify its ban with a single affidavit from a former chairman stating that allowing CPAs to solicit new clients would compromise their independence. The Supreme Court struck the ban down, ruling that sheer speculation about some hypothetical harm was not enough to warrant restricting free speech.
If the lone affidavit in Edenfield was inadequate as a matter of law, then it follows that Chief Fruchey’s even less substantive affidavit in Chris’ case was not enough to justify banning his “for sale” sign. Before it can regulate commercial speech under Central Hudson, Glendale must have concrete evidence that the speech in question poses a concrete harm to the public.
And in 44 Liquormart, Inc. v. Rhode Island, the U.S. Supreme Court rejected a ban on alcohol advertising because Rhode Island was simply trying to keep people ignorant about a legal product to discourage its use.[c]44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).[/c] If people have the right to make informed decisions about purchasing alcohol, then surely they can be trusted with the knowledge that a parked car is up for sale.
Chris lives in Glendale, Ohio, with his wife, Dr. Carol Choi, and their young son, Brennan. He practices law in nearby Middleton where he is a partner at Repper, Powers & Pagan, a firm he joined in 1997 and where he was recently made partner. He also spent three years as a city prosecutor after he graduated from law school in 1992.
Despite his devotion to his family, his thriving practice and his Cincinnati Reds, Chris finds time to give back to his community. He volunteers for Volunteer Lawyers for the Poor, and serves as the President of the Butler County Public Defender Commission. Chris is also a mentor with the Ohio State Bar. Finally, in his what little spare time that remains, he sits on the Board of Trustees of the Butler County Bar Association, and serves as the chairman of several committees.
He brought this case on his own, and then teamed up with the Institute for Justice, because he believes firmly in the First Amendment. The Litigation Team
The litigation team on this appeal consists of William H. Mellor, III, President and General Counsel of the Institute, and Jeff Rowes, an IJ staff attorney. Rowes will argue the case before the full Court of Appeals later this term.
Reinforcing and Expanding Free Speech
The Institute for Justice litigates in support of fundamental individual liberties, including free speech. IJ’s headquarters and state chapters have scored significant victories on behalf of individuals and businesses throughout the nation. A few of these important speech victories include: Swedenburg v. Kelly,[c]358 F.3d 223 (2d Cir. 2004).[/c] where the Institute for Justice persuaded the 2nd U.S. Circuit of Court of Appeals to enforce the First Amendment by striking down a prohibition on advertisements and solicitation for alcoholic beverages by anyone other than licensed retailers. ForSaleByOwner.com Corp. v. Zinnemann,[c]347 F. Supp. 2d 868 (E.D. Cal. 2004).[/c] where the Institute for Justice persuaded the U.S. District Court for the Eastern District of California to enforce the First Amendment by striking down the State of California’s attempt to impose real estate broker licensing requirements on an informational website. Battaglieri v. Mackinac Center For Public Policy,[c]680 N.W.2d 915 (Mich. Ct. App. 2004).[/c] where the Institute for Justice successfully defended on First Amendment grounds an invasion of privacy claim against a public policy research institute that accurately quoted a representative of the Michigan Education Association in a letter to supporters. Wexler v. City of New Orleans,[c]267 F. Supp. 2d 559 (E.D. La. 2003).[/c] where the Institute for Justice persuaded the U.S. District Court for the Eastern District of Louisiana to enforce the First Amendment by striking down an ordinance that prohibited booksellers from selling books on city sidewalks without a permit. Taucher v. Born,[c]53 F. Supp. 2d 464 (D.D.C. 1999).[/c] where the Institute for Justice persuaded the U.S. District Court for the District of Columbia to enforce the First Amendment by striking down a regulation issued by the Commodity Futures Trading Commission that would have required publishers of certain financial newsletters and Internet websites to register as commodity trading advisors.
For the First Amendment to mean anything, it must mean that government cannot censor ordinary speech for our own good, even if that speech is “commercial.” Chris Pagan stood up for his rights and those of everyone else when he challenged Glendale’s power to ban his sign because of what it said. A victory for him will be a victory for all of those who cherish one of our most important rights: the freedom of speech.
For more information contact:
Lisa Knepper, Director of Communications (email@example.com)
John Kramer, Vice President for Communications (firstname.lastname@example.org)
Institute for Justice 901 N. Glebe Rd., Suite 900 Arlington, VA 22203